WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Anheuser-Busch Incorporated v. Gilinda Rogers A/K/A Gilinda Granger
Case No. D2001-0134
1. The Parties
The Complainant is Anheuser-Busch Incorporated, a Missouri company whose principal place of business is at Executive Office, One Busch Place, St. Louis, Missouri 63118-1852, USA. The Complainant is represented by Steven M. Weinberg of Weinberg, Cummerford Legal Group, with a mailing address of 2390 East Camelback Road, Suite 250, Phoenix, Arizona 85016, USA.
The Respondent is an individual named Gilinda Rogers a/k/a Gilinda Granger and with a mailing address in Williamsburg, VA 23185, USA. Her e-mail address is firstname.lastname@example.org.
2. The Domain Names and Registrars
The domain names at issue are "buschgardens.net," "bushgardens.com," "alpengeist.com," and "watercountry.net." The Registrar of the domain names "buschgardens.net," and "alpengeist.com" is Registrars.com of 475 Sansome Street, Suite 570, San Francisco, California 94111, USA. The Registrar of the domain names "bushgardens.com" and "watercountry.net" is Network Solutions, Inc. ("NSI"), 505 Huntmar Park Drive, Herndon, VA 20170, USA.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("the Center") on January 24, 2001, and assigned Case number D2001-0134.
On February 4, 2001, the Complainant was notified of a deficiency in its Complaint because, in its Registration Agreement, Respondent did not submit to the jurisdiction at the location of the principal office of the Registrar (NSI) for adjudication of disputes concerning or arising from the use of the domain name "watercountry.net," in accordance with Paragraph 3(b)(xiii) of the Rules for Uniform Domain Name Dispute Resolution ("the Rulesí). On February 7, 2001, the Complainant corrected the deficiency by submitting to the jurisdiction of the courts where the Respondent is located as shown by the address given for the domain name holder (watercountry.net) in the concerned registrarís Whois database at the time of the commission of the Complaint to the WIPO Center. Pursuant to Paragraph 2(h)(iii) of the Rules, the Complainant served a copy of the Statement of Consent to Mutual Jurisdiction upon the Respondent by email. WIPO verified that the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), Rules, and the Supplemental Rules for Uniform Dispute Resolution Policy ("the "Supplemental Rules"), in accordance with paragraph 4(a) of the Rules, and paragraph 5 of the Supplemental Rules. The Administrative Panelist ("Panel") is satisfied that the Complaint has met the requirements of the Policy, Rules, and Supplemental Rules.
Notification of the Complaint and commencement of the administrative proceedings were given to the Respondent by notice dated February 8, 2001, and sent by email to the Respondent at the email address noted above. The hard copy of the document was also transmitted by courier and the Panelist has seen the courier receipt. The Panelist is satisfied that the Center satisfied the Rules and the Supplemental Rules with regard to notification. No response was received by the expiry of the twenty-day deadline on February 27, 2001. Notification of the Respondentís default was given on March 1, 2001, by email at the address given in the Complaint, by courier and by post. The Panel is therefore satisfied that the notification of the Respondentís default was effectively given.
The Panel was properly constituted. The undersigned Panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
The Panel has not received any requests from Complainant or Respondent regarding further submissions, waivers, or extensions of deadlines. The Panel has not found it necessary to request any further information from the parties, as a consequence of which the date scheduled for the issuance of the Panelís decision is April 4, 2001.
4. Factual Background
The Complainant is Anheuser-Busch Incorporated ("Anheuser-Busch"). The Complainant has owned federally registered service marks for BUSCH GARDENS since December 7, 1971, and first used the mark in 1959, ALPENGEIST since November 11, 1997, and for WATERCOUNTRY USA since June 24, 1986.
The marks are used in connection with amusement parks located in Williamsburg, Virginia and Tampa, Florida. Between 1975 and 2000, advertising and promotional expenditures for these parks exceeded $175 million. In 2000, over 7 million guests were entertained at the two Busch Gardens amusement parks.
5. Partiesí Contentions
The Complainant contends:
(i) The domain names registered by Respondent are either identical or confusingly similar to the service marks in which the Complainant has rights. Complainant contends that when a person visits the websites corresponding to the domain names "buschgardens.net," "bushgardens.com," "alpengeist.com," and "watercountry.net" he is connected to virtually identical sites with the heading "Busch Gardens, Williamsburg, VA." The sites offer visitors erroneous information pertaining to ticket prices and hours of operation, short descriptions of the various amusement rides offered at the Busch Gardens amusement parks and advertisements. Complainant attached Annexes F, L and T to the Complaint, a printout of the home pages of the offending websites.
(ii) There is no evidence that the Respondent has any rights or legitimate interest in the domain names. The Complainant contents that the Respondent has neither priority rights in the name, nor is she affiliated with Complainant, nor is she otherwise authorized to use Complainantís mark.
(iii) The Respondent has registered and used the domain names "buschgardens.net," "bushgardens.com," "alpengeist.com," and "watercountry.net" in bad faith. On information and belief, Complainant contends that Respondent registered the disputed domain names for commercial gain, with the intention of diverting Internet users to her site. Complainant believes that Respondent is profiting from the traffic directed to her website through the goodwill and fame of the BUSCH GARDENS mark. Complainant contends that the amusement park is located in Williamsburg, Virginia, where Respondent resides and Complainant believes the Respondent has visited the amusement park herself. Complainant contends Respondent is a known cybersquatter who has acquired domain names corresponding with other famous marks, including "colonialwilliamsburg.com," "williamsburgwinery.com," "usgetaways.com," "superstation.com," "cox.cable.com," and "coxcommunications.com." Complainant submits Respondent is apparently proud of her cybersquatting activities, as she has her own personal website "gilinda.com," which includes a webpage reserved exclusively for news clippings about her activities. Complainant also submits evidence that other judicial bodies have found that Respondent registered and used domain names in bad faith.
In the absence of a response from the Respondent, there are, of course, no submissions to counter the Complainantís submissions. The Panel, therefore, has no alternative but to determine the case on the basis of the Complainantís submissions only and to determine whether the Complainant has established its Complaint.
6. Discussion and Findings
(i) The domain name is identical or confusingly similar
The domain names in dispute are "buschgardens.net," "bushgardens.com," "alpengeist.com," and "watercountry.net." The domain names are identical or virtually identical to and confusingly similar to the Complainants federally registered service marks BUSCH GARDENS, ALPENGEIST, AND WATER COUNTRY USA. Attached as Annexes D, J, and R are copies of the registered service marks.
The domain names at issue suggest websites that an ordinary consumer would likely believe were operated or sponsored by Anheuser-Busch or otherwise affiliated with Anheuser-Busch. These websites are not operated by or authorized by Complainant. When a person visits the websites corresponding to the domain names at issue, he is connected to virtually identical sites with the heading "Busch Gardens, Williamsburg, VA." Attached to the Complaint as Annexes F, L, and T are copies of the homepages in dispute. Each of the websites are dedicated to providing information about Complainantís amusement park in Williamsburg, VA. It is clear to the Panel that the domain names were intended to be identical or virtually identical to Complainantís trademarks, and to the extent those domain names are not identical, they are confusingly similar to Complainantís trademarks.
Thus, the Panel finds for the Complainant on the first element, that Respondentís domain names are identical or confusingly similar to the service marks in which the Complainant has rights.
(ii) The Respondent has no rights of legitimate interest in respect of the domain names
Respondent has never alleged to have any rights or legitimate interests in the domain names. When requested by Complainant in December 2000 to cease all use of Complainantís federally registered marks "buschgardens.net," "alpengeist.com," and "watercountry.net" and transfer the domain names to Complainant, Respondent replied by stating that she wished to voluntarily relinquish the domain names and had made arrangements to complete the transfer to the Vice President of Marketing for Busch Gardens. Respondent did not give any explanation as to why the domain names had been registered. A copy of the facsimile is attached to the Complaint as Annex CC. Complainant sent Respondent another letter in December 2000 acknowledging Respondentís purported desire to relinquish the domain names. On January 9, 2001 Respondent returned via facsimile a transfer agreement for only one of the domain names "watercountry.net." Complainant never received an original of said transfer agreement, nor has Complainant received any of the required documents from Respondent regarding the transfer of the other domain names.
Around January 16, 2001, Respondent removed all of the offending content from the websites "buschgardens.net," "bushgardens.com," "alpengeist.com," and "watercountry.net." A recent search reveals that Respondent has since reactivated "bushgardens.com." Respondent retains the registrations for the domain names.
The Panel finds that the Respondent has not used the domain names in connection with a bona fide offering of goods or services other than the goods and services offered by Complainant. Respondent does appear to offer advertising in association with at least the "bushgardens.com" website, and as such, is essentially trading off of the goodwill of Complainant.
It is clear to the Panel that the Respondent has no rights or legitimate interests in the domain names, other than to trade off of the goodwill of the Complainant. Mere registration alone cannot constitute such rights. The Complainant therefore succeeds in proving the second element.
(iii) The domain names were registered and are being used in bad faith
The Panel finds that the Respondent registered and used the disputed domain names in bad faith. The Respondent registered and used the domain names with the intent to attract, for commercial gain, Internet users to its websites by creating confusion as to source, sponsorship, affiliation, or endorsement of her website. Many Internet users would assume that the Complainant had endorsed or sponsored the sites, or was somehow affiliated with the Respondent and/or all the parties whose marks appear on the sites.
The Respondent has acquired and registered many domain names corresponding with other famous marks. A copy of the Network Solutions Whois search for Respondentís name and alias is attached to the Complaint as Annex X. Respondent appears to be proud of her cybersquatting activities. She has been the subject of numerous Internet articles describing her practice of amassing domain names for resale and advertising revenue. Examples of some of these articles are attached to the Complaint as Annex Y. Respondent has even reserved a webpage "gilinda.com" for news clippings about her activities. A copy of this webpage is attached to the Complaint as Annex Z.
The evidence in this case, Respondentís proud display of cybersquatting activities, and the fact that other judicial bodies have found that Respondent has registered and used other domain names in bad faith (see Annex AA attached to the Complaint), demonstrate Respondentís bad faith in registering and using the domain names at issue.
The Panel therefore concludes that the Complainant has succeeded in proving that the domain names have been registered and are being used in bad faith.
It follows that the Complainant has proved its three submissions in accordance with paragraph 4(a) of the Rules and that, accordingly, the Complainant has succeeded in its Complaint.
In light of the foregoing, the Administrative Panel decides that the domain names registered by Respondent are identical and/or confusingly similar to the trademarks of Complainant, that the Respondent has no rights or legitimate interests in respect of the domain names, and that the Respondentís domain names have been registered and are being used in bad faith.
Accordingly, pursuant to paragraph 4(i) of the Uniform Domain Name Dispute Resolution Policy, the Administrative Panel requires that registration of each of the following domain names be transferred to Complainant:
Timothy D. Casey
Dated: April 4, 2001