The Complainant is Monster Energy Company, United States of America (“United States” or “U.S.”), represented by Knobbe, Martens, Olson & Bear, LLP, United States.
The Respondent is Nabiev Ravshan, Russian Federation. 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 June 8, 2021. On June 9, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 18, 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 June 18, 2021, 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 June 24, 2021. On June 18, 2021, the Center sent an email to the Parties in English and Russian regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding and provided additional arguments in support of its request in the Complaint. The Respondent has not provided any response regarding 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 the Respondent of the Complaint in English and in Russian, and the proceedings commenced on June 30, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 20, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 23, 2021. The Center appointed Oleksiy Stolyarenko as the sole panelist in this matter on August 2, 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 a U.S. based corporation specializing on designing, creating, developing, marketing, and selling beverages, specifically, energy drinks. Before January 5, 2012, the Complainant was known as Hansen Beverage Company d/b/a Monster Beverage Company. After that the Complainant changed its name to Monster Energy Company. In early 2002, the Complainant introduced its Monster Energy line of beverages in the United States, which prominently bears the Complainant’s MONSTER ENERGY mark. In 2003, the Complainant began selling its Monster Energy line of beverages internationally. Since its introduction, the Complainant’s Monster Energy line has been very successful. Sales have increased every year since the brand’s launch. Worldwide retail sales now exceed 5 billion cans per year with estimated retail sales exceeding USD 10 billion per year. The Complainant sells its Monster Energy drinks to consumers in many countries around the world, including in the Russian Federation. The Complainant has registered a number of MONSTER ENERGY trademarks worldwide, including in the Russian Federation, for a broad range of goods and services. Some of the MONSTER ENERGY trademark registrations are indicated below: - Unites States trademark registration for MONSTER ENERGY No. 3057061, registered on February 7, 2006, for the goods class 32; - International Registration for M MONSTER ENERGY and design No. 1048069 registered on June 28, 2010, for the goods in classes 9, 16, 18, and 25, designating inter alia the Russian Federation; - European Union Trade Mark (“EUTM”) for M MONSTER ENERGY and design No. 011154739 registered in January 9, 2013, for the goods in classes 5, 16, 25, 30, and 32. - EUTM registration for MONSTER ENERGY No. 004823563, registered on January 10, 2007, for goods in classes 5 and 32; - Russian Federation trademark registration for M MONSTER ENERGY and design No. 1048069 registered on June 28, 2010, for goods in classes 9, 16, and 18; - Russian Federation trademark registration for MONSTER ENERGY No. 583857 registered on August 15, 2016, for goods in classes 11, 20, and 21; - Russian Federation trademark registration for MONSTER ENERGY No. 534298 registered on February 10, 2015, for services in class 35. The Complainant is also the owner of the domain name The Russian version of the Complainant’s website is accessible on “https://www.monsterenergy.com/ru/ru/home”. The Respondent appears to be a Russian individual. According to the WhoIs, the disputed domain name was registered in the name of the Respondent on January 30, 2021. The website under the disputed domain name is currently inactive. However, based on the information provided by the Complainant as of February 2, 2021 the disputed domain name linked to a page depicting the Complainant’s Monster Energy products with the language in German translated into English as “We will randomly select 500 participants to whom we will send a refrigerator with new drinks completely free of charge. All you have to do is answer a quick survey and fill out a form on the 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 corporate name, trade name, trademarks, and domain names throughout the world contain the designation “Monster Energy”. The Complainant’s registrations for its MONSTER ENERGY mark date back to the U.S. trademark registration first issued in February 2006. That is around fifteen years before the Respondent registered the disputed domain name on January 25, 2021. Therefore, the Complainant’s trademark acquired protection significantly prior to the registration of the disputed domain name. The Complainant’s trademarks and products are popular in the Russian Federation. The Complainant has sold more than 50 million cans of Monster Energy drinks since 2015, gross sales for which total over USD 27.8 million (approximately 1.9 billion RUB) in the Russian Federation. Monster Energy drinks are sold in more than 5,000 towns in the Russian Federation, including cities such as Moscow, Saint Petersburg, Saratov, Samara, and Sochi. In addition to the use of the MONSTER ENERGY trademark on the beverages, the Complainant also uses the MONSTER ENERGY trademark on various items, including but not limited to, entertainment services, video games; clothing; accessories; bags; sports gear; helmets; stickers; and decals. The Complainant intensively promotes the MONSTER ENERGY trademark by sponsoring athletes, athletic teams, and athletic competitions all over the world, which receive significant viewers’ attention, including from the Russian Federation. As of January 2021, the Complainant’s Facebook page had more than 25.4 million “likes”, Twitter account had more than 3 million followers, Instagram page had more than 7.2 million followers, and TikTok profile had more than 590,000 followers. The Complainant actively enforces the MONSTER ENERGY trademark online and at least 16 previous panels have recognized the Complainant’s rights in the MONSTER ENERGY trademark. The disputed domain name consists of the Complainant’s trademark MONSTER ENERGY and followed by the generic Top-Level Domain (“gTLD”) “.space”. The disputed domain name is identical to the Complainant’s trademarks. The “.space” gTLD should be disregarded during the confusing similarity analysis, because it is a functional element, and it can be considered as highly descriptive considering the Complainant’s worldwide activities. The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not authorized the Respondent to use the trademark MONSTER ENERGY in the disputed domain name. The Respondent is not commonly known by the disputed domain name. The Respondent was fully aware of the Complainant’s reputation and the Complainant’s trademark rights on the MONSTER ENERGY trademark when he registered the disputed domain name. The Respondent was 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. Furthermore, the Respondent’s website at the disputed domain name deceived the visitors into thinking that they are visiting a webpage affiliated with, sponsored by, approved by, or otherwise endorsed by the Complainant and confirms that the Respondent acted in bad faith registering the domain name. In addition, the Complainant also believes that the Respondent use of the website at the disputed domain name as a vehicle for phishing activities attempting to collect information from the visitors also constitutes use in bad faith. Furthermore, the fact that the disputed domain name does not currently resolve to an active website does not prevent a finding of bad faith. The Complainant seeks a decision that the domain name be transferred to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 11(a) of the Rules “unless otherwise agreed by the Parties, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding”. In this case the Registrar has confirmed that the language of the Registration Agreement for the disputed domain name is Russian. The Panel also notes that the Respondent is located in the Russian Federation. The Complainant filed the Complaint in English and requested English to be the language of this proceeding indicating that, parts of the website corresponding to the disputed domain name are in English and in German languages, and that requiring the Complainant to translate the Complaint and all documents into Russian would cause unjustified delay in resolution of this case. The Panel notes that the disputed domain name is composed of Latin characters, and that “monster-energy” is not a dictionary word or phrase in Russian. In previous similar cases, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement (see section 4.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). While applying the provision on the language of the proceeding the Panel considers that it should be also ensured that the parties are treated equally, that each party is given a fair opportunity to present its case and that the proceeding takes place with due expedition. The Center duly notified the Respondent in English and in Russian on the request of the Complainant to use English as the language of the proceeding. The Respondent was also provided with an opportunity to object and request the proceeding to not be carried in English. Furthermore, the Panel notes that the Center sent the notification of the Complaint and commencement of the proceeding to the Parties in both languages (English and Russian), accepting the Complaint filed in English, and giving equal opportunities to the Parties to participate in the proceeding. In addition, the Panel notes that the Respondent did not submit a formal Response, and did not use an opportunity to argue his case. The Center also appointed the Panel that is familiar with both English and Russian in order to treat the Parties equally in the proceeding. Therefore, the Panel concludes that each Party of the proceeding was treated fairly and was provided a fair opportunity to present its case. The Panel also finds additional translation of the filings would unfairly disadvantage and burden the Parties and delay the proceeding and adjudication of this matter. Based on the foregoing, the Panel concludes that it is not unfair to the Parties to proceed in English and finds that it is appropriate to exercise its discretion and allow the proceeding to be conducted in English. A. Identical or Confusingly Similar The Complainant has proved its rights in the MONSTER ENERGY trademark through trademark registrations in the United States and European Union, as well as international registrations designating numerous countries worldwide including the Russian Federation, and national trademark registrations in the Russian Federation. Therefore, the Panel considers that the Complainant has satisfied the threshold requirement of having relevant trademark rights. Furthermore, the Panel considers that the disputed domain name is identical to the Complainant’s MONSTER ENERGY trademark. The Panel notes that the disputed domain name incorporates the Complainant’s trademark MONSTER ENERGY in its entirety and is identical to the Complainant’s trademark. The gTLD is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. See section 1.11.2 of the WIPO Overview 3.0. The practice of disregarding the TLD applies also to “new gTLDs” such as gTLDs “.space”. Previous UDRP panels considering this issue came to the same conclusion. Please see LEGO Juris A/S v. lin zhang,WIPO Case No. D2020-0675. Therefore, the Panel disregards the gTLD for the purposes of this comparison. The disputed domain name was registered by the Respondent with a hyphen between the words “monster” and “energy”, however, the Panel finds that it does not prevent the Complainant’s trademark from being recognizable in the disputed domain name. The Panel finds that according to a side-by-side comparison the disputed domain name reproduces in its entirety the Complainant’s MONSTER ENERGY trademark and, thus, that the Complainant’s MONSTER ENERGY trademark is recognizable within the disputed domain name. For all the foregoing reasons, the Panel finds that the first element of paragraph 4(a) of the Policy has therefore been satisfied by the Complainant. B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy requires the complainant to establish that the respondent has no rights or legitimate interests in the domain name. Once the Complainant establishes a prima facie case against the Respondent under this ground, the burden of production shifts to the Respondent to rebut it. See section 2.1 of the WIPO Overview 3.0. In this case, the Respondent did not rebut the Complainant’s prima facie case regarding the lack of rights or legitimate interests. However, the overall burden of proof remains with the Complainant. Paragraph 4(c) of the Policy provides circumstances that demonstrate the respondent’s rights or legitimate interests to the disputed domain name, and that the complainant frequently address to show that the activities of the respondent does not fall under the bona fide offering of goods or services (paragraph 4(c)(i) of the Policy), that the respondent is not commonly known by the disputed domain name (paragraph 4(c)(ii) of the Policy) and that the respondent is not making a legitimate noncommercial or fair use of the disputed domain name (paragraph 4(c)(iii) of the Policy). The Panel finds that because the disputed domain name is identical to the Complainant’s MONSTER ENERGY trademark any use of such domain name by the Respondent carries a high risk of implied affiliation with the Complainant. See section 2.5.1 of the WIPO Overview 3.0. According to the Complainant, the Respondent is not an authorized or licensed to use the MONSTER ENERGY trademark in the disputed domain name, as well as not authorized to use the images of the Complainant’s products, run any consumer surveys, or market any activities on behalf of the Complainant. The fact that the Respondent previously linked the disputed domain name to a page depicting the Complainant’s Monster Energy beverages and the MONSTER ENERGY trademarks, offered to visitors rewards in such energy drinks confirms that the Respondent was well aware that the MONSTER ENERGY is a trademark of the Complainant, and of the Complainant’s products and activities. The Panel notes, that as it was found by the previous UDRP panels any type of impersonation or passing off supports finding that the respondent has no rights or legitimate interests in the domain name. See section 2.13.1 of the WIPO Overview 3.0. Therefore, the Panel also finds that the Respondent is not involved in a bona fide bona fide offering of goods or services (under paragraph 4(c)(i) of the Policy) and the Respondent’s activities does not fall under a legitimate noncommercial use (under paragraph 4(c)(iii) of the Policy). According to the Registrar’s information, “Nabiev Ravshan” is the registrant of the disputed domain name. The Panel did not find any evidence that the Respondent is commonly known by the disputed domain name. The Panel concludes that the Respondent is not commonly known by the disputed domain name under paragraph 4(c)(ii) of the Policy. Thus, the Panel finds that the Complainant has satisfied the second element of the Policy, namely paragraph 4(a)(ii). C. Registered and Used in Bad Faith As the Panel established above, the Complainant’s MONSTER ENERGY trademark was widely used in commerce well before the registration of the disputed domain name on January 25, 2021. The Panel finds that the Respondent knew of the Complainant’s MONSTER ENERGY trademark when registering the disputed domain name. This conclusion is supported by the facts that the disputed domain name is identical to the Complainant’s MONSTER ENERGY trademark (except the gTLD), that the disputed domain name was linked to a page depicting the Complainant’s products and the MONSTER ENERGY trademark, and that the Respondent offered as a reward for the completion of a questionnaire at the linked page, “a refrigerator with new drinks completely free of charge”, which is a clear reference to the nature of the activities of the Complainant. The Responded failed to submit a response or provide any evidence of a good-faith use or to show rights or legitimate interests in the disputed domain name. Previous UDRP panels have found that when the disputed domain name links to a webpage containing a complainant’s trademark and offers Internet users to complete an online questionnaire for a reward could be evidence of a fraudulent activity and intention of the respondent to intentionally attract, for commercial gain, Internet users by creating a likelihood of confusion with the complainant. See Decathlon v. WhoisGuard Protected, WhoisGuard, Inc. / Christopher Bost, Drone Squad, WIPO Case No. D2018-1649. The Panel finds here as well that the Respondent’s intention has always been to use the disputed domain name to intentionally attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location (see paragraph 4(b)(iv) of the Policy). Furthermore, the Panel finds it implausible that the disputed domain name could be used by the Respondent in good faith considering that it is identical to the Complainant’s trademark. The Panel finds that the fact that the disputed domain name does not currently resolve to an active website does not prevent a finding of bad faith in these circumstances. Therefore, under the totality of the circumstances, the Panel finds the Respondent registered and used the disputed domain name in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, 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 Oleksiy Stolyarenko
Sole Panelist
Date: August 16, 2021
Full & Egal Universal Law Academy