The Complainant is Monster Energy Company, United States of America (“United States”), represented by Knobbe, Martens, Olson & Bear, LLP, United States.
The Respondent is Vytautas, Lithuania. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 20, 2021. On May 20, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 21, 2021, 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 May 21, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Respondent, as is the standard routine of the Center, received a copy of the Notice of Registrant Information. The Complainant filed an amended Complaint on May 26, 2021. 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 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 16, 2021. The Respondent, after receipt of the copy of Notice of Registrant Information, sent informal communications on May 22, May 25, and May 28, 2021, but did not file a formal Response. The communications of May 22, May 25, and May 28, 2021, do not address the statements and allegations in the Complaint. The Center sent a possible settlement email to the Parties on May 28, 2021. The Complainant sent an email on June 2, 2021, requesting the proceeding not be suspended. The Center informed the Parties of its commencement of the panel appointment process on June 17, 2021. The Center appointed Christian Gassauer-Fleissner as the sole panelist in this matter on June 23, 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 The Complainant is in the business of designing, creating, developing, marketing, and selling beverages. The Complainant was formerly known as Hansen Beverage Company d/b/a Monster Beverage Company and changed its name to Monster Energy as of January 5, 2012. The Complainant started selling its Monster Energy line of beverages in the United States in early 2002, and in 2003 the sales went international. The Complainant is the exclusive owner of a number of registered trademarks consisting of or including the words MONSTER ENERGY, including: - European Union Trade Mmark registration No. 004823563 for MONSTER ENERGY, registered on January 10, 2007, and registered for goods in international classes 5 and 32; - Unites States trademark registration No. 3057061 for MONSTER ENERGY, registered on February 7, 2006, and registered for goods and services in international class 32. The Complainant is also the owner of the domain name The disputed domain name was registered on November 24, 2020. As evidenced in the Complaint, the disputed domain name resolved to a template webpage displaying the text “welom to monster energy gaming”. At the time of the Decision, the disputed domain name does not resolve to an active website. 5. Parties’ Contentions A. Complainant The Complainant argues that it has strong rights in the MONSTER ENERGY trademarks, resulting from the Complainant’s trademark registrations for the MONSTER ENERGY trademarks in numerous countries and from continuous use of the marks in commerce since at least as early as 2002. The Complainant’s registrations for its MONSTER ENERGY marks in the United States first issued in February 2006, more than fourteen years before the Respondent registered the disputed domain name on November 24, 2020, which according to the Complainant, shows that the MONSTER ENERGY trademark has been famous since well before the registration. The Complainant further asserts that the most distinguishing feature of the disputed domain name is identical to the Complainant’s MONSTER ENERGY marks. Regarding the second element, the Complainant contends that the disputed domain name is not used in connection with a bona fide offering of goods and services since the disputed domain name leads to a virtually inoperable webpage containing three directory links. According to the Complainant, the use of WordPress template sites without any substantive content is not considered a bona fide offering of goods or services. Moreover, the Complainant has not authorized, licensed or permitted the Respondent, or any other person or entity to use the MONSTER ENERGY mark in connection with registering a “.tech” domain name. Further, according to the Complainant, there is no evidence that the Respondent has been or was commonly known by the disputed domain name. The Complainant contends that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, since the Complainant has not authorized the Respondent to use or register the disputed domain name, nor was the website being used in connection with a bona fide offering of goods and services. Finally, the Complainant asserts that the Respondent registered the disputed domain name in bad faith as the Complainant’s trademark MONSTER ENERGY became well-known internationally well before the registration of the disputed domain name. Further, it is evident that that the Respondent was aware of the Complainant due to the fact that the webpage displays the text “welom to monster energy gaming”. The Complainant requests that the disputed domain name be transferred to the Complainant. B. Respondent The Respondent did not formally reply to the Complainant’s contentions. However, in email communications from May 22, May 25, and May 28, 2021, the Respondent indicated that he doesn’t have the time to read the Complaint against him, and that he “do[es] not use or need the [disputed] domain [name]” and is “willing to let go of the [disputed] domain [name]”. Also, prior to the notification of the Complaint, the Respondent requested more information about the Complaint and the Complainant. 6. Discussion and Findings Paragraph 15(a) of the Rules requires that the Panel’s decision be made “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 applicable”. It has been a consensus view in previous UDRP decisions that a respondent’s default (i.e., failure to submit a response) would not by itself mean that the Complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true (See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The same view should be taken in a case where the Respondent did file communications that do not comply with the Rules as far as the content of a Response is concerned. Whether or not the Respondent’s communication of May 28, 2021, constitutes an acknowledgement of the relief sought by Complainant does not have to be decided in this matter. A complainant must evidence each of the three elements required by paragraph 4(a) of the Policy in order to succeed on the complaint, namely that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights, The Panel finds that the disputed domain name is identical to the Complainant’s MONSTER ENERGY, in which the Complainant has established rights through registration. The disputed domain name consists of the MONSTER ENERGY trademark and the generic Top-Level Domain (“gTLD”) “.tech”. The applicable gTLD 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 (see section 1.11 of the WIPO Overview 3.0). Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, previous UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, 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 (see section 2.1 of the WIPO Overview 3.0). Based on the evidence provided by the Complainant, the Panel concludes that the Respondent was aware of the Complainant and had the Complainant’s MONSTER ENERGY mark in mind when registering the disputed domain name. The disputed domain name is identical to the Complainant´s distinctive MONSTER ENERGY mark, therefore it most likely aims to attract Internet users searching for the Complainant’s domain name. The disputed domain name currently does not resolve to an active website. The Complainant made a prima facie case that the Respondent lacks rights or legitimate interests to which the Respondent failed to respond. There is no evidence that the Respondent is using the disputed domain name in connection with a bona fide offering of goods and services or that the Respondent has been commonly known by the disputed domain name. By not submitting a formal Response, the Respondent has failed to invoke any circumstances, which could demonstrate any rights or legitimate interests in the disputed domain name. In his informal communications from May 22, May 25, and May 28, 2021, the Respondent provided no explanation or evidence to demonstrate preparations for a bona fide offering of goods or services or other circumstances that could disprove the prima facie case made by the Complainant, but rather indicated a lack of continued interest in the disputed domain name. Furthermore, the disputed domain name, being identical to the Complainant’s trademark, carries a high risk of implied affiliation (see section 2.5.1 of the WIPO Overview 3.0). Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel notes that the Complainant’s MONSTER ENERGY trademark was widely used in commerce well before the registration of the disputed domain name on November 24, 2020. The fact that the disputed domain name is identical to the Complainant’s MONSTER ENERGY trademark (except the gTLD) and was registered several years after the registration of the Complainant´s trademark demonstrates, in view of the Panel, that the Respondent knew of the Complainant’s MONSTER ENERGY trademark when registering the disputed domain name. The Respondent provided no explanations for why he registered the disputed domain name. The Panel also concludes that the actual use of the disputed domain name was in bad faith. The domain led to a WordPress template site without any substantive content and the statement “welom to monster energy gaming”. Panels have consistently found that the mere registration of a domain name that is identical or confusingly similar to a famous or widely known trademark by an unaffiliated entity can by itself create a presumption of bad faith (see section 3.1.4 of the WIPO Overview 3.0). The Respondent has not formally participated in these proceedings and has failed to disprove the Complainant’s contentions. Further, the Respondent stated in his informal emails that he “do[es] not use or need” the disputed domain, which leads to the conclusion that the Respondent has no legitimate interest or bona fide use of the disputed domain name but was rather acting in bad faith. The fact that the disputed domain name no longer resolves to an active website does not prevent a finding of bad faith in these circumstances (see section 3.3 of the WIPO Overview 3.0). For these reasons, the Panel considers that the Respondent’s conduct constitutes bad faith registration and use of the disputed domain name. Accordingly, 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, Christian Gassauer-Fleissner
(ii) the 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. A. Identical or Confusingly Similar
Sole Panelist
Date: July 7, 2021
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