The Complainant is Monster Energy Company, United States of America (the “United States”), represented by Knobbe, Martens, Olson & Bear, LLP, United States.
The Respondent is Whois Agent, Whois Privacy Protection Service, Inc., United States / Artsiom Dryneuski, Belarus.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 4, 2021. On December 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 6, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 7, 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 December 13, 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 December 15, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 4, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 5, 2022.
The Center appointed Piotr Nowaczyk as the sole panelist in this matter on January 12, 2022. 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 BackgroundMonster Energy Company, the Complainant in the present proceedings, is a company operating in the business of designing, creating, developing, marketing, and selling beverages. In early 2002, the Complainant introduced its Monster Energy line of beverages in the United States. In 2003, Complainant began selling its Monster Energy line of beverages internationally.
The Complainant is the owner of numerous MONSTER ENERGY trademark registrations, including:
- United States Trademark Registration MONSTER ENERGY No. 3057061 registered on February 7, 2006;
- European Union Trade Mark Registration MONSTER ENERGY No. 004823563 registered on January 10, 2007;
- Belarusian Trademark Registration MONSTER ENERGY No. 44706 registered on June 7, 2013.
The Complainant also owns the domain name incorporating its MONSTER ENERGY trademark
The Respondent registered the Domain Name on August 8, 2021.
The Complainant attached to the Complaint screenshots showing that the Domain Name resolves to a website including an “add-to-cart” button which allows consumers to attempt to buy Complainant’s alleged products (the “Website”). The Website then solicits personal financial information and consumers’ contact information when consumers attempt to purchase the Complainant’s drinks.
As of the date of this Decision, the Website is inactive.
5. Parties’ Contentions A. ComplainantThe Complainant requests that the Domain Name be transferred to the Complainant. According to the Complainant, each of the three elements specified in paragraph 4(a) of the Policy are satisfied in the present case.
First, the Complainant submits that the Domain Name is identical to the trademark registration of the Complainant.
Second, the Complainant argues that the Respondent has neither rights nor legitimate interests in the Domain Name.
Third, the Complainant submits that the Domain Name was registered and is being used in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsParagraph 4(a) of the Policy places a burden on the Complainant to prove the presence of three separate elements, which can be summarized as follows:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The requested remedy may only be granted if the above criteria are met.
At the outset, the Panel notes that the applicable standard of proof in UDRP cases is the “balance of probabilities” or “preponderance of the evidence”. See section 4.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
A. Identical or Confusingly SimilarThe first element that the Complainant must establish is that the Domain Name is identical or confusingly similar to the Complainant’s trademark rights.
The Complainant holds several valid MONSTER ENERGY trademark registrations, which precede the registration of the Domain Name.
The Domain Name incorporates the Complainant’s MONSTER ENERGY trademark in its entirety. As numerous UDRP panels have held, incorporating a trademark in its entirety is sufficient to establish that a domain name is identical or confusingly similar to a registered trademark (see PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS),WIPO Case No. D2003-0696).
The Top-Level domain “.one” in the Domain Name is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. See WIPO Overview 3.0, section 1.11.1.
Given the above, the Panel finds that the Domain Name is identical to the Complainant’s trademark. Thus, the Complainant has proved the requirements under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsThe second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the Domain Name.
The Respondent may establish a right or legitimate interest in the disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy any of the following:
(a) that it has made preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services prior to the dispute; or
(b) that it is commonly known by the domain name, even if it has not acquired any trademark rights; or
(c) that it is making a legitimate, noncommercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.
Although given the opportunity, the Respondent has not submitted any evidence indicating that any of the circumstances foreseen in paragraph 4(c) of the Policy are present in this case.
On the contrary, it results from the evidence in the record that there are the Complainant’s MONSTER ENERGY trademark registrations, which predate the Respondent’s registration of the Domain Name. There is no evidence in the case that the Complainant has licensed or otherwise permitted the Respondent to use the MONSTER ENERGY trademark or to register the Domain Name incorporating this trademark. There is also no evidence to suggest that the Respondent has been commonly known by the Domain Name.
Moreover, it does not result from the evidence in the record that the Respondent is making a legitimate, noncommercial or fair use of the Domain Name without intent for commercial gain.
The Panel also finds that the Domain Name carries a high risk of implied affiliation with the Complainant. See WIPO Overview 3.0, section 2.5.1.
Thus, the Complainant has proved the requirements under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThe third requirement the Complainant must prove is that the Domain Name has been registered and is being used in bad faith.
Bad faith under the UDRP is broadly understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant’s mark. See WIPO Overview 3.0, section 3.1.
Under paragraph 4(b) of the Policy, evidence of bad faith registration and use include without limitation:
(i) circumstances indicating the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of a trademark or to a competitor of the trademark owner, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or
(ii) circumstances indicating that the domain name were registered in order to prevent the owner of a trademark from reflecting the mark in a corresponding domain name, provided it is a pattern of such conduct; or
(iii) circumstances indicating that the domain name was registered primarily for the purpose of disrupting the business of a competitor; or
(iv) circumstances indicating that the domain name has intentionally been used in an attempt to attract, for commercial gain, Internet users to a website or other on-line location, by creating a likelihood of confusion with a trademark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on a website or location.
As indicated above, the Complainant’s rights in the MONSTER ENERGY trademark predate the registration of the Domain Name. It has been proven to the Panel’s satisfaction that the Complainant’s MONSTER ENERGY trademark is well-known and unique to the Complainant. Thus, the Respondent could not likely reasonably ignore the reputation of products this trademark identify. In sum, the Respondent in all likelihood registered the Domain Name with the expectation of taking advantage of the reputation of the Complainant’s trademark.
Moreover, the Domain Name is being used in bad faith by the Respondent to perpetuate a phishing scam on intentionally confused consumers. The Complainant presented the evidence showing that the Website contains an “add-to-cart” button which allows confused consumers to attempt to buy what they perceive to be Complainant’s products. The Website then solicits personal financial information and consumers’ contact information when consumers attempt to purchase the Complainant’s drinks. Using the Complainant’s trademark in the Domain Name and on the Website is undoubtedly aimed at giving credibility to the Respondent’s activity carried out through the Website. In consequence, the Panel accepts that the Respondent is using the Domain Name in an attempt to attract, for commercial gain, Internet users to the Website by creating a likelihood of confusion with the MONSTER ENERGY trademark as to the source, sponsorship, affiliation, or endorsement of the Website or the activity carried out through this Website by the Respondent.
For the reasons discussed above, the Panel finds that the Complainant has proved the requirements under paragraph 4(a)(iii) of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name
Piotr Nowaczyk
Sole Panelist
Date: January 20, 2022