The Complainant is Monster Energy Company, United States of America (“United States”), represented by Knobbe, Martens, Olson & Bear, LLP, United States.
The Respondent is Sun West Media, Mexico. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 11, 2020. On July 13, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 14, 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 the Complainant on July 14, 2020 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 July 17, 2020. 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 July 23, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 12, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 13, 2020. The Center appointed Zoltán Takács as the sole panelist in this matter on August 21, 2020. 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. The language of this administrative proceeding is English, that being the language of the Registration Agreement. 4. Factual Background The Complainant is in the business of designing, creating, developing, marketing and selling beverages. Since its launch in 2002, the Complainant has sold more than 28 billion cans of it MONSTER ENERGY drinks worldwide, and now sells approximately three billion cans per year worldwide. By volume and dollar value, according to the Complainant, its MONSTER ENERGY drinks are one of the best-selling energy drinks in the United States.. The Complainant owns an extensive global portfolio of trademarks consisting of or comprising MONSTER ENERGY, including Mexico Trademark Registration No. 1915081 registered on August 22, 2018, and United States Trademark Registration No. 3057061 registered on February 7, 2006 for goods of class 32 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks. Since February 22, 2002, the Complainant owns the domain name The disputed domain name was registered on July 4, 2019 and has been used to redirecting Internet users to a website promoting and offering cannabis-based beverages. 5. Parties’ Contentions A. Complainant The Complainant contends that apart from the country code Top-Level Domain (“ccTLD”) “.co” the disputed domain name is identical to its MONSTER ENERGY trademark. The Complainant alleges that the Respondent has no rights or legitimate interests in respect of the disputed domain name and is unable to rely of any of the circumstances set out in paragraphs 4(c)(i), (ii) or (iii) of the Policy. The Complainant claims that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant states that redirection of the disputed domain name to another website offering products competing with its own goods amounts to bad faith registration and use. B. Respondent The Respondent did not reply to the Complainant’s contentions. 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 UDRP decisions that a respondent’s default (i.e., failure to submit a formal 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”). 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; (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 Under paragraph 4(a)(i) of the Policy, there are two requirements which the Complainant must establish, first that it has rights in a trademark or service mark, and second that the disputed domain name is identical or confusingly similar to the trademark or service mark. It has been a consensus view among UDRP panels that if the complainant owns a trademark, then it generally satisfies the threshold requirement of having trademark rights. The Complainant produced evidence of having registered rights in the MONSTER ENERGY trademark and for the purpose of this administrative proceeding the Panel finds that the Complainant’s mark MONSTER ENERGY satisfies the requirement of having trademark rights for the purpose of the Policy. Having determined that the Complainant has trademark rights in the MONSTER ENERGY mark, the Panel next assessed whether the disputed domain name According to section 1.7 of the WIPO Overview 3.0, the standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trademark and the disputed domain name. This test typically involves a side-by-side comparison of the disputed domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name. According to section 1.11.1 of the WIPO Overview 3.0, the applicable 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 confusingly similar test. The disputed domain name The Panel finds that the disputed domain name Under paragraph 4(c) of the Policy, a respondent may demonstrate its rights or legitimate interests in a domain name by showing any of the following circumstances, in particular but without limitation: (i) its use of, or demonstrable preparation to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods and services; (ii) it has been commonly known by the domain name; (iii) it is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue. In the present case, the Complainant has submitted sufficient and uncontested evidence that it holds well-established rights in the MONSTER ENERGY trademark. The Complainant has never authorized the Respondent to use its MONSTER ENERGY trademark in any way, and the Complainant’s prior rights in the MONSTER ENERGY trademark precede the date of registration of the disputed domain name. According to section 2.1 of the WIPO Overview 3.0, while the overall burden of proof in UDRP proceedings is on the complainant, 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 the relevant evidence demonstrating rights of 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. The Respondent defaulted and failed to respond, and by doing so failed to offer the Panel any type of evidence set forth in paragraph 4(c) of the Policy, or otherwise counter the Complainant’s prima facie case. The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy lists a number of factors which, if found by the panel to be present, shall be evidence of registration and use of a domain name in bad faith. This non-exclusive list includes: “(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the 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 you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.” The Complainant’s MONSTER ENERGY trademark is inherently distinctive, globally used and recognized. According to section 3.1.4 of the WIPO Overview 3.0, UDRP 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 itself create a presumption of bad faith. The disputed domain name entirely reproduces the Complainant’s trademark and redirects to another website at “www.drinkcannacola.com”, which advertises and offers cannabis-based beverages, products competing with those of the Complainant. This, in the Panel’s view not only demonstrates that the Respondent was clearly aware of the Complainant’s MONSTER ENERGY trademark at the time of registration of the disputed domain name, but also the Respondent’s obvious intent to target the Complainant’s MONSTER ENERGY trademark through diverting consumers to its website (or website under its control) without any authorization or rights to do so. The Respondent’s lack of any rights to or legitimate interests in the disputed domain name, absence of any conceivable good faith use of the disputed domain name by the Respondent, the Respondent’s failure to react and respond to the compelling evidence submitted by the Complainant convince the Panel that the Respondent has registered and is using the disputed domain name to attract, for commercial gain, Internet users to its website (or website under its control) by creating a likelihood of confusion with the Complainant’s mark within the meaning of paragraph 4(b)(iv) of the Policy. Accordingly, the Panel finds that paragraph 4(a)(iii) of the Policy is satisfied. 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 Zoltán Takács
Sole Panelist
Date: September 2, 2020
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