Complainant is Monster Energy Company, United States of America (“USA” or “US”), represented by Knobbe, Martens, Olson & Bear, LLP, USA.
Respondent is 高海生 (Hai Sheng Gao), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2020. On December 2, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 3, 2020, 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 Complainant on December 7, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint in English on December 12, 2020. On December 7, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. Complainant confirmed the request that English be the language of the proceeding on December 11, 2020. Respondent did not comment on the language of the proceeding. 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 Respondent of the Complaint, in English and Chinese, and the proceedings commenced on December 18, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 7, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default in English and Chinese on January 14, 2021. The Center appointed Yijun Tian as the sole panelist in this matter on January 26, 2021. 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 A. Complainant Complainant, Monster Energy Company, is a company incorporated in the US. Complainant is a world leading company designing, creating, developing, marketing, and selling beverages. Complainant’s MONSTER ENERGY brand is used in connection with beverages, clothing, sports gear, stickers, and other products and is widely known throughout the US and internationally. Since Complainant’s launch of Monster Energy drinks in 2002, Complainant has sold more than 22 billion cans of Monster Energy drinks worldwide, and now sells approximately 3.9 billion cans per year worldwide. Sales of Complainant’s Monster Energy drinks have generated more than USD 30 billion in gross worldwide sales, with estimated retail revenues in excess of USD 60 billion. Complainant has exclusive rights in MONSTER ENERGY, and MONSTER ENERGY related marks (hereinafter “MONSTER ENERGY marks”). Complainant is the exclusive owner of several MONSTER ENERGY marks worldwide, including a US trademark registration for MONSTER ENERGY registered on February 7, 2006 (the US trademark registration number 3057061); and a European Union trademark registration for MONSTER ENERGY registered on January 10, 2007 (European Union Trade Mark registration number 004823563), and a Chinese trademark registration for MONSTER ENERGY registered on April 14, 2015 (the Chinese trademark registration number 13845768) (Annex D to the Complaint). Complainant also owns and operates domain names which contain the MONSTER ENERGY mark in its entirety, such as Respondent is 高海生 (Hai Sheng Gao), China. The disputed domain name Complainant contends that the disputed domain name is identical to Complainant’s MONSTER ENERGY marks. Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant contends that the disputed domain name was registered and is being used in bad faith. Complainant requests that the disputed domain name Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceeding should be English. Complainant filed its Complaint in English, and has requested that English be the language of the proceeding for the following reasons: (1) Respondent uses English words, rather than Chinese characters, in the disputed domain name (2) Complainant and its representatives in this proceeding are not fluent in Chinese, and thus, it would cause undue delay and great additional expense if Complainant were required to submit all documents translated into Chinese in the proceeding. (3) A simple Internet search of Complainant’s MONSTER ENERGY mark would show at least hundreds of references to the MONSTER ENERGY brand in English. (4) The disputed domain name displays its content in both Japanese and English, not Chinese. Furthermore, Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding. Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593). The language finally decided by the UDRP panel for the proceeding should not be prejudicial to either one of the parties in its abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) further states: “Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case. Against this background, UDRP panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.” (WIPO Overview 3.0, section 4.5.1; see also L’Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585). The Panel has taken into consideration the facts that Complainant is a company from the US, and Complainant will be spared the burden of working in Chinese as the language of the proceeding. The Panel has also taken into consideration the fact that the disputed domain name includes Latin characters and English words “monster”, “energy”, and “shop” (Compagnie Gervais Danone v. Xiaole Zhang,WIPO Case No. D2008-1047). On the record, Respondent appears to be located in China and is thus presumably not a native English speaker, but the Panel finds persuasive evidence in the present proceeding to suggest that Respondent is likely to have sufficient knowledge of English. In particular, the Panel notes that, based on the evidence provided by Complainant, (a) the disputed domain name Considering these circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English. 6.2. Substantive Issues Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred: (i) the disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. On the basis of the evidence introduced by Complainant and in particular with regard to the content of the relevant provisions of the Policy, (paragraphs 4(a) - (c)), the Panel concludes as follows: A. Identical or Confusingly Similar The Panel finds that Complainant has rights in the MONSTER ENERGY marks acquired through registration. The MONSTER ENERGY marks have been registered internationally, including a US trademark registration for MONSTER ENERGY registered since 2006, a European Union Trade Mark registration for MONSTER ENERGY registered since 2007, and a Chinese trademark registration for MONSTER ENERGY registered since 2015. The disputed domain name “The applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” (WIPO Overview 3.0, section 1.11). Thus, the Panel finds that disregarding the gTLD suffix “.shop”, the disputed domain name is identical to the MONSTER ENERGY marks. The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name: (i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or (ii) Respondent has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or (iii) Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish Complainant’s trademarks. The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant’s contentions. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1). According to the Complaint, Complainant is a world leading company designing, creating, developing, marketing, and selling beverages. Complainant has rights in the MONSTER ENERGY mark, including in the US (since 2006), in the European Union (since 2007), and in China (since 2015), which precede Respondent’s registration of the disputed domain name (in 2020). Since Complainant’s launch of Monster Energy drinks in 2002, Complainant has sold more than 22 billion cans of Monster Energy drinks worldwide, and now sells approximately 3.9 billion cans per year worldwide. Moreover, Respondent is not an authorized dealer of MONSTER ENERGY-branded products or services. The Panel finds that Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifts the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610; Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455). Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name: (i) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the terms “monster energy” in its business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the MONSTER ENERGY marks or to apply for or use any domain name incorporating the MONSTER ENERGY marks. (ii) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name (iii) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, the website, resolved by the disputed domain name, is an e-commerce website, including English and Japanese text, offering for sale various products, such as backpacks, appliances, and cell phone cases (Annex M to the Complaint). It seems that Respondent is making profits through the Internet traffic attracted to the website under the disputed domain name. (See BKS Bank AG v. Jianwei Guo,WIPO Case No. D2017-1041; BASF SE v. Hong Fu Chen, Chen Hong Fu,WIPO Case No. D2017-2203) The Panel finds that Respondent has failed to produce any evidence to rebut Complainant’s prima facie showing on Respondent’s lack of rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely: (i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (ii) Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or (iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on the website or location. Upon the evidence of the circumstances in this case, it is adequate to conclude that Respondent has registered and used the disputed domain name in bad faith. a) Registered in Bad Faith The Panel finds that Complainant has a widespread reputation in the MONSTER ENERGY marks with regard to its products and services. As mentioned above, Complainant is a world leading company designing, creating, developing, marketing, and selling beverages. Complainant has rights in the MONSTER ENERGY mark, including in the US (since 2006), in the European Union (since 2007), and in China (since 2015). Since Complainant’s launch of Monster Energy drinks in 2002, Complainant has sold more than 22 billion cans of Monster Energy drinks worldwide, and now sells approximately 3.9 billion cans per year worldwide. It is not conceivable that Respondent would not have had actual notice of Complainant’s trademark rights at the time of the registration of the disputed domain name (in 2020). The Panel therefore finds that the MONSTER ENERGY mark is not one that traders could legitimately adopt other than for the purpose of creating an impression of an association with Complainant. The Argento Wine Company Limited v. Argento Beijing Trading Company, supra. Moreover, Respondent has chosen not to respond to Complainant’s allegations. According to the UDRP panel’s decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, “the failure of the Respondent to respond to the Complaint further supports an inference of bad faith”. See also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787. Thus, the Panel concludes that the disputed domain name was registered in bad faith. b) Used in Bad Faith Complainant also has adduced evidence to show that by using the disputed domain name, Respondent has “intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites or other online location”. To establish an “intention for commercial gain” for the purpose of this Policy, evidence is required to indicate that it is “more likely than not” that intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra.). Given the widespread reputation of the MONSTER ENERGY marks and the identical disputed domain name, the Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with Complainant, contrary to fact. And, as mentioned above, the dispute domain name resolved to an e-commerce website, offering for sale various products. Respondent is likely to have made commercial gain by “freeriding” on the reputation of Complainant and its trademarks, which is indicative of Respondent’s bad faith use of the disputed domain name. Moreover, Respondent has not responded to the Complaint. The Panel therefore concludes that the disputed domain name was registered and is being used by Respondent in bad faith. In summary, Respondent, by choosing to register and use a domain name which is identical to Complainant’s trademark, intended to ride on the goodwill of Complainant’s trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain name and the conduct of Respondent as far as the website to which the disputed domain name resolves is indicative of registration and use of the disputed domain name in bad faith. The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy. 7. Decision For all 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 Yijun Tian
Sole Panelist
Dated: February 8, 2021
Full & Egal Universal Law Academy