national arbitration forum

 

DECISION

 

Anheuser-Busch, Incorporated v. Presidential Tickets

Claim Number:  FA0608000786566

 

PARTIES

Complainant is Anheuser-Busch, Incorporated (“Complainant”), represented by Andrea Cannon, of Anheuser-Busch Companies, Inc., One Busch Place, St. Louis, MO 63118.  Respondent is Presidential Tickets (“Respondent”), 175 W Jackson Blvd, Chicago, IL 60604.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <buschstadium.com>, registered with Network Solutions, Inc.

 

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

Honorable Paul A. Dorf (Ret.) as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on August 29, 2006; the National Arbitration Forum received a hard copy of the Complaint on September 1, 2006.

 

On August 31, 2006, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <buschstadium.com> domain name is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name.  Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

 

On September 1, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 21, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@buschstadium.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On September 27, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <buschstadium.com> domain name is identical to Complainant’s BUSCH STADIUM mark.

 

2.      Respondent does not have any rights or legitimate interests in the <buschstadium.com> domain name.

 

3.      Respondent registered and used the <buschstadium.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Anheuser-Busch, Inc., is a leading American brewer.  Complainant brews, markets and distributes one of the worlds most popular beers under the BUSCH brand.  Complainant, a Fortune 500 company, commonly sponsors worldwide sporting and entertainment events.  In connection with Complainant’s sponsorship of sporting events, Complainant holds a trademark registration for the BUSCH STADIUM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,050,640 issued April 8, 1997).

 

Respondent registered the <buschstadium.com> domain name on October 30, 1998.  The disputed domain name redirects Internet users to the <tickets-unlimited.com> domain name which does not resolve to any content. 

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

 

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.  The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory.  See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).

 

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

 

(1)   the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2)   Respondent has no rights or legitimate interests in respect of the domain name; and

(3)   the domain name has been registered and is being used in bad faith.

 

Identical and/or Confusingly Similar

 

Complainant has established rights in the BUSCH STADIUM mark through registration of the mark with the USPTO.  See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”). 

 

Complainant contends that the disputed domain name is identical to its registered BUSCH STADIUM mark.  The disputed domain name contains Complainant’s BUSCH STADIUM mark in its entirety without a space between the terms and adds the generic top-level domain (“gTLD”) “.com.”  The Panel finds that the omission of a space and the addition of a gTLD does nothing to distinguish a domain name from Complainant’s trademark.  For the purposes of Policy ¶ 4(a)(i), the Panel finds the <buschstadium.com> domain name to be identical to Complainant’s BUSCH STADIUM mark.  See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant).

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

Complainant contends that Respondent does not have rights or legitimate interests in the disputed domain name.  Pursuant to Policy ¶ 4(a)(ii), Complainant bears the initial burden to establish a prima facie case that Respondent does not have rights or legitimate interests in this disputed domain name.  Once such a prima facie case is established, the burden shifts to Respondent to prove that they do have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).  The Panel finds that Complainant has successfully established a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name.

 

Respondent’s failure to submit a Response in this proceeding raises a presumption that Respondent lacks rights and legitimate interests in the disputed domain name.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).  However, the Panel chooses to analyze the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”).

 

Complainant contends that Respondent is not commonly known by the disputed domain name.  According to the WHOIS registry, the registrant of the disputed domain name is “Presidential Tickets” of Chicago, Illinois.  Due to the fact that there is nothing in the evidentiary record to suggest otherwise, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that the respondent was not commonly known by <aolcamera.com> or <aolcameras.com> because the respondent was doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’  Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).

 

Additionally, Complainant contends that Respondent has not used the disputed domain in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use.  The disputed domain name redirects Internet users to the <tickets-unlimited.com> domain name which does not resolve to any content.  Respondent’s inactive use of the disputed domain name since its initial registration in 1998 does not qualify as a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Franzus Co. v. Cotner, FA 125365 (Nat. Arb. Forum Nov. 7, 2002) (determining that after the respondent’s passive holding of the disputed domain name for five years, its “unsupported, self-serving allegations alone are insufficient to establish that the Respondent has rights or legitimate interests in respect of the domain name at issue”); see also AT&T Corp. v. Domains by Brian Evans, D2000-0790 (WIPO Sept. 27, 2000) (finding no rights or legitimate interests where the respondent did not provide any documentation on the existence of its alleged company that might show what the company’s business was, or how the company’s years of existence, if it ever existed, might mesh with the complainant’s trademark claims).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

The Panel finds that Respondent’s inactive use of the website since1998 creates a presumption of bad faith registration and use.  Due to the lack of evidence to rebut such a presumption, the Panel finds that Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii), generally.  See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that passive holding of a domain name permits an inference of registration and use in bad faith); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith). 

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <buschstadium.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Honorable Paul A. Dorf (Ret.), Panelist

Dated:  October 11, 2006

 

 

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