The Complainant is Monster Energy Company, United States of America (“United States”), represented by Knobbe, Martens, Olson & Bear, LLP, United States.
The Respondent is WhoisGuard, Inc., Panama / Harunor Rashid, Bangladesh. 2. The Domain Name and Registrar
The disputed domain name is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 19, 2019. On April 23, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 23, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 25, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 1, 2019.
The Center verified that the Complaint, together with the amended Complaint, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 2, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 22, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 23, 2019.
The Center appointed David Taylor as the sole panelist in this matter on June 4, 2019. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is a company incorporated in Delaware, with its principal place of business in Corona, California, United States. The Complainant is in the business of developing, marketing, and selling beverages. The Complainant’s core product line consists of a range of caffeinated, carbonated energy drinks, which have been sold by the Complainant and its predecessor in interest (Hansen Beverage Company d/b/a Monster Beverage Company) since 2002 under the name and trademark MONSTER ENERGY. The Complainant also markets various other products under the MONSTER ENERGY trademark, including (but not limited to) nutritional supplements, clothing, accessories, bags, sports gear, and stickers. In addition to the products listed above, the Complainant markets and promotes its MONSTER ENERGY trademark via a wide range of sponsorship channels. Notably, the Complainant is the title sponsor of the Monster Energy NASCAR Cup Series, which includes “Pennzoil 400”, a stock-car race which takes place in Las Vegas, Nevada, United States.
The Complainant is the registrant of the domain name , at which it launched its website on August 19, 2003.
The Complainant is the owner of, inter alia, the following trademark registrations, for use in connection with the products listed above:
- United States Trademark Registration No. 3044315, MONSTER ENERGY, registered on January 17, 2006;
- European Union Trade Mark Registration No. 004823563, MONSTER ENERGY, registered on January 10, 2007; and
- Bangladeshi Trademark Registration No. 126615, M MONSTER ENERGY (and design), registered on June 13, 2013.
The disputed domain name was registered on March 3, 2019, using a privacy service. According to the information provided by the Registrar, the underlying registrant of the disputed domain name is an individual located in Dhaka, Bangladesh.
The disputed domain name resolves to a website (the “Respondent’s website”) that purports to offer free live streaming of the Pennzoil 400 stock-car race. According to the “Terms and Conditions” page of the Respondent’s website, the operator of the Respondent’s website is located at Sioux Falls, South Dakota, United States. The Respondent’s website prominently displays a link that states “watch now”. Upon clicking on the link, Internet users are led to a third-party website that also purports to offer live-streaming services, where Internet users are requested to provide their personal and credit card details in order to create a user account. 5. Parties’ Contentions A. Complainant
The Complainant claims to be the owner of the MONSTER ENERGY trademark, which it has used extensively in commerce in connection with a wide variety of products, most notably its energy drinks, in the United States and internationally since 2002. The Complainant asserts that the disputed domain name is identical to its MONSTER ENERGY trademark.
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant states that it has not authorized, licensed, or permitted the Respondent to use the MONSTER ENERGY trademark in connection with any domain name registered under the “.live” generic Top-Level Domain (“gTLD”). The Complainant asserts that there is no evidence that the Respondent is commonly known by the disputed domain name. The Complainant further contends that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
The Complainant asserts that the Respondent registered and is using the disputed domain name in bad faith. The Complainant claims that its MONSTER ENERGY trademark had become well known in the United States and internationally well before the registration of the disputed domain name by the Respondent. As such, the Complainant argues that it is not possible to conceive of a plausible situation in which the Respondent was not aware of the Complainant’s trademark at the time the disputed domain name was registered. In fact, the Complainant submits that it can be inferred from the use of the disputed domain name that the Respondent was aware of the Complainant’s trademark. The Complainant asserts that the Respondent’s use of the disputed domain name in connection with a website promoting a live stream of the Pennzoil 400 race is intended to confuse potential customers into believing that the disputed domain name is affiliated with, sponsored by, or otherwise endorsed by the Complainant, when it is not.
The Complainant requests transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed in its Complaint, the Complainant must prove on the balance of probabilities that it has satisfied the requirements of paragraph 4(a) of the Policy, as follows:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant has established rights in the MONSTER ENERGY trademark through its registration and use, as outlined in the factual background section above.
The disputed domain name incorporates the Complainant’s MONSTER ENERGY trademark in its entirety, without alteration or addition, save for the omission of the space between the words “monster” and “energy”, which make up the Complainant’s trademark. Noting that a space is incapable of representation per se in a domain name, the Panel finds the disputed domain name to be identical to the Complainant’s MONSTER ENERGY trademark.
The gTLD “.live” being a technical requirement of registration may be disregarded for the purposes of comparison under the first element in the present case.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Noting that to prove that a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
Based on the evidence on record, the Panel does not consider that the Respondent is using the disputed domain name in connection with a bona fide offering of goods or services in accordance with paragraph 4(c)(i) of the Policy. In fact, the Respondent does not appear to be offering any goods or services via the website at the disputed domain name itself. Rather, primary purpose of the Respondent’s website appears to be to systematically drive Internet users searching for the Complainant to a third‑party website where Internet users are requested to enter their personal and credit card information, ostensibly to access online video‑streaming services, from which it may be presumed that the Respondent (or another) derives commercial benefit.
The Panel accepts the Complainant’s submission that there is no evidence that the Respondent is commonly known by the disputed domain name, or a name corresponding to the disputed domain name within the meaning of paragraph 4(c)(ii) of the Policy. The Respondent is identified in the WhoIs record for the disputed domain name as “Harunor Rashid”, whereas the operator of the disputed domain name purports to be “Midwest Venture Group”, neither of which bears any resemblance to the disputed domain name.
For similar reasons to those relating to paragraph 4(c)(i) of the Policy (see above), the Panel does not consider the Respondent’s use of the disputed domain name to amount to a legitimate noncommercial or fair use of the disputed domain name pursuant to paragraph 4(c)(iii) of the Policy.
Based on the above, the Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent, having been duly notified of the present proceedings, has not come forward with any arguments or evidence to rebut the Complainant’s prima facie case.
For the foregoing reasons, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
At the time the disputed domain name was registered, the Complainant had already marketed its products in the United States and internationally for over 15 years, and had been the owner of a substantial portfolio of trademark registrations for MONSTER ENERGY for over 10 years. It can be readily inferred from the content of the website that the Respondent was well aware of the Complainant and its products and activities at the time the disputed domain name was registered, as the Respondent’s website makes direct reference to the Complainant itself. The Panel finds that the disputed domain name, being identical to the Complainant’s trademark, creates a clear impression of association between the disputed domain name and the Complainant’s trademark.
The Respondent uses the disputed domain name to purport to promote free live streaming of the Pennzoil 400 race, while at the same time makes direct reference to the Complainant. There is nothing on the website in the form of a disclaimer to clarify the Respondent’s lack of relationship with the Complainant. The “watch now” link on the Respondent’s website drives Internet users to a third-party website offering live‑streaming services, where Internet users are requested to provide their personal and credit card information in order to create user accounts. The Respondent does not benefit from a licence or any other authorization from the Complainant to use the disputed domain name in such way.
For the foregoing reasons, the Panel finds that by using the disputed domain name the Respondent has attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or other online location, pursuant to paragraph 4(b)(iv) of the Policy.
The Panel further notes that the Respondent registered the disputed domain name using a privacy service. While the underlying registrant is listed as being an individual located in Dhaka, Bangladesh, the Respondent’s website states that the website is owned and operated by “Midwest Venture Group” of Sioux Falls, South Dakota, United States. In the context of the present case, the Panel finds that the registration of the disputed domain name combined with the lack of clarity as to the identity of the owner of the Respondent’s website further supports a finding of bad faith.
For the foregoing reasons, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
David Taylor
Sole Panelist
Date: June 16, 2019
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