Budweiserchallenge.com

The timeline behind budweiserchallenge.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Anheuser - Busch, Incorporated v. Whitney VanCleave Claim Number: FA0805001195951 PARTIES Complainant is Anheuser - Busch, Incorporated (“Complainant”), represented by Paul D. McGrady, of Greenberg Traurig, LLP, Illinois, USA. Respondent is Whitney VanCleave (“Respondent”), Texas, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <budweiserchallenge.com>, registered with GoDaddy.com, Inc. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. Louis E. Condon as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on May 29, 2008; the National Arbitration Forum received a hard copy of the Complaint on June 2, 2008. On May 30, 2008, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <budweiserchallenge.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, 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 June 4, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 24, 2008 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@budweiserchallenge.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On June 27, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <budweiserchallenge.com> domain name is confusingly similar to Complainant’s BUDWEISER mark. 2. Respondent does not have any rights or legitimate interests in the <budweiserchallenge.com> domain name. 3. Respondent registered and used the <budweiserchallenge.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant has registered the BUDWEISER mark with the United States Patent and Trademark Office (“USPTO”) for beer and related products. (Reg. No. 922,481 issued October 19, 1971). Respondent’s <budweiserchallenge.com> domain name was registered on April 17, 2008. It currently resolves to a parked web page featuring advertisements and links to various unrelated third-parties. Additionally, an e-mail was sent to Complainant from the address listed on Respondent’s WHOIS administrative contact information indicating a willingness to sell the disputed domain name to Complainant. Complainant responded by e-mail offering to purchase the disputed domain name for consideration of Respondent’s out-of-pocket costs related to the registration of the <budweiserchallenge.com> domain name. No additional correspondence occurred between the parties. 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 sufficiently established its rights in the BUDWEISER mark through registration with the USPTO pursuant to Policy ¶ 4(a)(i). See U.S. Office of Pers. Mgmt. v. MS Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003) (“[O]nce the USPTO has made a determination that a mark is registrable, by so issuing a registration, as indeed was the case here, an ICANN panel is not empowered to nor should it disturb that determination.”); see also 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.”). The <budweiserchallenge.com> domain name contains Complainant’s BUDWEISER mark in its entirety followed by the generic term “challenge” and the generic top level domain (“gTLD”) “.com.” The inclusion of a generic word and a gTLD does not distinguish a disputed domain name. Consequently, the Panel finds that the <budweiserchallenge.com> domain name is confusingly similar to the BUDWEISER mark pursuant to Policy ¶ 4(a)(i). See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Disney Enters. Inc. v. McSherry, FA 154589 (Nat. Arb. Forum June 17, 2003) (finding the <disneyvacationvillas.com> domain name to be confusingly similar to Complainant’s DISNEY mark because it incorporated Complainant’s entire famous mark and merely added two terms to it); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”). The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(i). Rights or Legitimate Interests Under a Policy ¶ 4(a)(ii) analysis, Complainant must first establish a prima facie case that Respondent has no rights or legitimate interests in the <budweiserchallenge.com> domain name. See VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (“Respondent's default, however, does not lead to an automatic ruling for Complainant. Complainant still must establish a prima facie case showing that under the Uniform Domain Name Dispute Resolution Policy it is entitled to a transfer of the domain name.”). The Panel finds that Complainant has met this threshold and that the burden is accordingly shifted to Respondent to demonstrate that it has rights or legitimate interests in the disputed domain names. 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”). No response has been submitted to the Complaint. The Panel therefore may presume that Respondent has no rights or legitimate interests in the <budweiserchallenge.com> domain name, but will nonetheless examine the record in light of the elements listed under Policy ¶ 4(c). See 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).”); see also Eroski, So. Coop. v. Getdomains Ishowflat Ltd., D2003-0209 (WIPO July 28, 2003) (“It can be inferred that by defaulting Respondent showed nothing else but an absolute lack of interest on the domain name.”). Nothing in Respondent’s WHOIS information or anything else in the record indicates that Respondent is or ever was commonly known by the disputed domain name. Furthermore, Respondent never sought nor has been granted permission to use the BUDWEISER mark in any way. Without any additional evidence, the Panel finds that Respondent is not nor ever was commonly known by the <budweiserchallenge.com> domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.”). The disputed domain name resolves to a parked website featuring links and advertisements to various third-parties unrelated to Complainant. The Panel finds that this use does not constitute either 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 Royal Bank of Scotland Group plc. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with 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 also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name). An e-mail was sent from Respondent’s administrative contact offering to sell the <budweiserchallenge.com> domain name to Complainant. The Panel finds this to be further evidence that Respondent has no rights or legitimate interest in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Mothers Against Drunk Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) (holding that under the circumstances, the respondent’s apparent willingness to dispose of its rights in the disputed domain name suggested that it lacked rights or legitimate interests in the domain name); see also Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.”) The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Respondent expressed its interest in selling the disputed domain name to Complainant. The Panel finds this willingness to part with the disputed domain name to establish Respondent’s bad faith registration and use of the disputed domain pursuant to Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); see also Banca Popolare Friuladria S.p.A. v. Zago, D2000-0793 (WIPO Sept. 3, 2000) (finding bad faith where the respondent offered the domain names for sale). Finally, the disputed domain name resolves to a website displaying various links and advertisements to third-parties. The Panel presumes that Respondent is commercially benefiting from these advertisements and that Respondent receives click-through fees for each Internet users who clicks on one of the advertisements or links. The Panel finds this to be further evidence of Respondent’s bad faith registration and use of the <budweiserchallenge.com> domain name pursuant to Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 16, 2007) (concluding that Internet users would likely be confused as to the source or sponsorship of the <blackstonewine.com> domain name with the complainant because the respondent was redirecting Internet users to a website with links unrelated to the complainant and likely receiving click-through fees in the process). The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(iii). DECISION Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED. Accordingly, it is Ordered that the <budweiserchallenge.com> domain name be TRANSFERRED from Respondent to Complainant. Louis E. Condon, Panelist Dated: July 8, 2008 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.