WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Boston Beer Corporation and BBC Brands, LLC v. Netsolutions Proxy Services
Case No. D2004-0920
1. The Parties
The Complainants are Boston Beer Corporation and BBC Brands, LLC, Boston, Massachusetts, United�States�of�America, represented by Dorsey & Whitney LLP of New�York, New�York, United�States�of�America.
The Respondent is Netsolutions Proxy Services of Hong Kong, SAR of China.
2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with F Pty Ltd. (the “Registrar”).
3. Procedural History
The Complainants filed a Complaint against the Respondent in respect of the Domain Name under the Uniform Domain Name Dispute Resolution Policy (the�“Policy”) with the WIPO Arbitration and Mediation Center (the “Center”) on November�4,�2004. The Center transmitted its request for registrar verification to the Registrar on November�5,�2004. On November�8,�2004, the Registrar confirmed that it was the Registrar for the Domain Name.
On November�10,�2004, the Center verified that the Complaint satisfied the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the�“Supplemental Rules”).
In accordance with the Rules, Paragraphs�2(a) and 4(a), the Center formally notified the Complaint to the Respondent, and this UDRP proceeding commenced on November�10,�2004.
In accordance with the Rules, Paragraph�5(a), the due date for Response was November�30,�2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December�3,�2004.
The Complainants elected in the Complaint to have the dispute determined by a single-member Panel. The Center appointed Mark Min-Jen Yang as that member on December�20,�2004, who had earlier submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, Paragraph�7.
Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly served on the Respondent and has been submitted to a properly constituted single member Panel in accordance with the Policy, the Rules and the Supplemental Rules.
4. Factual Background
Respondent registered the Domain Name on August�10,�2004.
The Complainants are a brewer of ale and beer. In the United�States�of�America, it is the largest specialty brewer and the sixth largest overall. Their markets beyond the United�States�of�America, includes countries in Europe and Asia. In 2003, sales of their ale and beer products exceeded $200 million. Tens of millions of dollars are spent annually to promote those products.
The Complainants have trademark registrations for the mark SAMUEL ADAMS and variations thereof, in the United States for their ale and beer products. The Complaint mentions (at Paragraph�16):
SAMUEL ADAMS, US registration # 1,987,062
SAM ADAMS, US registration # 1,987,061
SAM ADAMS (stylized), US registration # 2,054,509
The Complainants have trademark registrations for the mark SAMUEL ADAMS and variations thereof, internationally for their ale and beer products. The Complaint mentions (at Paragraph�17):
SAMUEL ADAMS, Hong Kong, SAR of China registration # 4016/2000
All of the Complainants’ (registered) trademarks (listed in the Complaint and associated exhibits) are collectively termed herein as “SAMUEL ADAMS Marks” for convenience of expression.
The Complainants have domain name registrations corresponding to (or�reflective�of) their SAMUEL ADAMS Marks. The Complaint (at Paragraph�18) lists several and mentions that the domain names and are actively used by the Complainants to resolve to a website that promotes their ale and beer products.
The Complaint (and associated exhibits 3-6) reflect a collection of legal entities as owning various trademark registrations and domain name registrations of its SAMUEL ADAMS Marks, only two of which are obviously party to this UDRP proceeding. This collection includes:
“Boston Beer Corporation” (Co-Complainant)
“Bbc Brands, LLC” (Co-Complainant)
“Boston Beer Company”
“Boston Beer Company Limited Partnership”
“Boston Beer Company Limited Partnership dba The Boston Beer Company”
“The Boston Beer Company, Inc.”
“Boston Brewing Company, Inc.”
“Brewing Company, Inc.”
According to the Complaint, each co-Complainant “does business as” “The Boston Beer Company”.
The aforementioned Hong Kong trademark registration is owned by an entity called “Boston Beer Company Limited Partnership”, which may or may not be associated with Complainants.
5. Parties’ Contentions
The Complainants contend: that the Domain Name is identical or confusingly similar to SAMUEL ADAMS Marks, to which it has rights; that the Respondent has no rights or legitimate interests in respect of the Domain Name; and that the Domain Name was registered and is being used in bad faith.
The Complainants request a decision that the Domain Name be transferred to them.
As mentioned above, the Respondent did not reply to the Complainants’ contentions.
6. Discussion and Findings
One requirement of fundamental due process is that a Respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a Respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, Paragraph�2(a)).
In this case, this Panel is satisfied that the Center took all steps reasonably necessary to notify the Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of the Respondent to furnish a Response to the Complaint is not due to any omission by the Center. There is sufficient evidence, in the case file provided by the Center, for this Panel to conclude the Center discharged its obligations under Rules, Paragraph�2(a) (see Procedural History, supra).
Where there is default, under Paragraph�14(a) of the Rules, “the Panel shall proceed to a decision on the complaint”, and under Paragraph�14(b) of the Rules, “the Panel shall draw such inferences [from the default] as it considers appropriate”. Furthermore, Paragraph�15(a) of the Rules provides that a “Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate”. Since the Respondent has not submitted any evidence, the Panel must render its Decision on the basis of the uncontroverted evidence supplied by the Complainants.
In accordance with Paragraph�4(a) of the Policy, to succeed in this UDRP proceeding, the Complainants must prove (A) that the Domain Name is identical or confusingly similar to a trademark in which they have rights, and, (B) that the Respondent has no rights or legitimate interests in respect of the Domain Name, and (C) that the Domain Name was registered and is being used in bad faith. These requirements will be considered in turn below.
A. Identical or Confusingly Similar to Mark in which the Complainants have Rights
The Panel is satisfied that the Complainants have rights in their SAMUEL ADAMS Marks by virtue of their legal status as registered trademarks and the extensive use of the SAMUEL ADAMS Marks, and associated consumer recognition, in association with their ale and beer products in the United�States�of�America and elsewhere (including Hong�Kong, where the Respondent is located).
The Domain Name is effectively identical to the SAMUEL ADAMS Marks. The addition of the generic word “beer” to the words “SAMUEL ADAMS”, is not sufficient to distinguish.
The Panel concludes that the first requirement of the Policy is met.
B. Rights or Legitimate Interests
The Panel is satisfied that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent has provided no argument of evidence of rights or legitimate interests to counter the Complainants’ assertions on this issue. By virtue of the legal status of the SAMUEL ADAMS Marks as registered trademarks and the extensive use of the SAMUEL ADAMS Marks, and associated consumer recognition, in association with their ale and beer products in the United States of American and elsewhere (including Hong Kong, where the Respondent is located), the Complainants conclude by asserting that the circumstances described in Paragraphs�4(c)(ii) and�4(c)(iii) of the Policy, for proof of legitimate interest by the Respondent in the disputed domain name, do not exist. The Panel accepts the Complainants’ assertions.
The Panel concludes that the second requirement of the Policy is met.
C. Registered and Used in Bad Faith
The Panel is satisfied that the Domain Name was registered and is being used in bad faith. According to the Complaint, the Respondent registered the Domain Name with knowledge of the Complainants’ rights in their SAMUEL ADAMS Marks and is using the Domain Name to misleadingly divert Internet traffic to its own commercial website, which is unlicensed by the Complainants.
The Panel concludes that the third requirement of the Policy is met.
7. Decision
The remedy sought in the Complaint is the transfer of the Domain Name to the Complainants. The Panel is uncertain what legal entity the Complainants (defined by the Complaint as “Boston Beer Corporation and BBC Brands, LLC”), is. For the purpose of the reasoning of the Panel’s decision, the Panel is prepared to assume that all the various entities mentioned above (under Factual Background) are related to the Complainants according to the applicable laws, and that the Complainants are legally representative of all such entities. For the purpose of granting the remedy sought, the Panel is prepared to grant the remedy sought on the following basis: it assumes that the Complainants, as such, have a legal status under applicable laws and that the Panel does not have to know that legal status; that the Registrar is prepared (at least administratively) to transfer the Domain Name to the Complainants; and that the Complainants can later, if wished or required by applicable laws, transfer the Domain Name to one of them or to another legal entity.
For all the foregoing reasons, in accordance with Paragraphs�4(i) of the Policy and 15�of the Rules, the Panel orders that the Domain Name, , be transferred to the Complainants, “Boston Beer Corporation and BBC Brands, LLC” or as they may direct.
Mark Ming-Jen Yang
Sole Panelist
Dated: January�3,�2005
Full & Egal Universal Law Academy