WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Monster Energy Company v. Niels Van Winckel
Case No. D2020-2046
1. The Parties
The Complainant is Monster Energy Company, United States of America (“United States”), represented by Knobbe, Martens, Olson & Bear, LLP, United States.
The Respondent is Niels Van Winckel, Belgium.
2. The Domain Name and Registrar
The disputed domain name <monsterenergy.monster> (“Domain Name”) is registered with Key-Systems GmbH (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 1, 2020. On August 4, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 5, 2020, 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 the Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 5, 2020, 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 August 10, 2020. On August 10, 2020, the Respondent sent an email stating he wished to transfer the Domain Name to the Complainant. On August 18, 2020, the Complainant confirmed that it did not wish to engage in settlement discussions with the Respondent.
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 August 19, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 8, 2020. An informal Response was filed with the Center on August 19, 2020.
The Center appointed Nicholas Smith as the sole panelist in this matter on September 15, 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.
4. Factual Background
The Complainant is an American company operating in the beverage industry, specialising in energy drinks. The Complainant has since 2002 marketed and sold beverages under the word mark MONSTER ENERGY (the “MONSTER ENERGY Mark”). As of the date of the Complaint, the Complainant’s annual retail sales of its Monster Energy line of beverages exceeds 3 billion cans worth USD 6 billion, sold in countries across the globe. The Complainant has extensively advertised its Monster Energy line of beverages through various marketing channels, but especially through its sponsorship of many sporting events and sportspersons.
The Complainant is the owner of numerous international registrations for the MONSTER ENERGY Mark or marks containing the MONSTER ENERGY Mark. In particular the Complainant has registered M MONSTER ENERGY (the “M MONSTER ENERGY Mark”) in the United States on January 17, 2006, with trademark number 3044314, and the MONSTER ENERGY Mark in the European Union on October 1, 2007, with trademark number 004823563.
The Domain Name <monsterenergy.monster>, was registered on June 28, 2020 and redirects to a parking page maintained by a web hosting company.
5. Parties’ Contentions
The Complainant makes the following contentions:
(i) that the Domain Name is identical or confusingly similar to the Complainant’s MONSTER ENERGY Mark;
(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is subsequently being used in bad faith.
The Complainant is the owner of MONSTER ENERGY Mark, having registered this mark in numerous jurisdictions around the world. The Domain Name is identical to the MONSTER ENERGY Mark as it wholly incorporates the MONSTER ENERGY Mark with the addition of the “.monster” Top-Level Domain (“TLD”). The TLD reinforces the impression that the Domain Name is connected to the Complainant.
There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Respondent is not commonly known by the Domain Name, has no licence or right to use the Domain Name and has never been granted any permission by the Complainant for the registration of the Domain Name. The Domain Name resolves to an inactive website.
The Domain Name was registered and is being used in bad faith. The Domain Name wholly incorporates the Complainant’s well-known MONSTER ENERGY Mark and is being passively held to prevent the Complainant from reflecting its MONSTER ENERGY Mark in the Domain Name.
The Respondent made three informal communications during the course of this proceeding, the relevant portions being extracted below. The first communication, made on August 6, 2020 consisted of the statement:
“Hello I don’t really understand what’s going on. Can you please tell me what the problem is?”
On August 11, 2020, the Respondent made a second communication, consisting of the statements:
“Anything I have to do with all these documents? Can’t I just transfer the domain to them? Because I don’t have time for all this administrative nonsense…”
The Complainant indicated that it was not interested in entering into a settlement discussion and wished to proceed with the case. On August 19, 2020, the Respondent made a final communication, consisting of the statements:
“I’m still wondering why you keep sending me all these mails when I already said multiple times that I want to transfer the domain to them and get this over with. So please, let’s settle this and stop wasting everyone’s time. I even canceled the domain already so it won’t be extended for another period when this period ends...”
The Panel considers that the Respondent has, without conditions, consented to the transfer of the Domain Name to the Complainant.
6. Discussion and Findings
A. Consent to Transfer
The Respondent has consented to the transfer of the Domain Name to the Complainant. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”) section 4.10, states, in response to the question “How do panels handle cases involving a respondent’s informal or unilateral consent for the transfer of the domain name to the complainant outside the ‘standard settlement process’ described above?” that:
“Where parties to a UDRP proceeding have not been able to settle their dispute prior to the issuance of a panel decision using the ‘standard settlement process’ described above, but where the respondent has nevertheless given its consent on the record to the transfer (or cancellation) remedy sought by the complainant, many panels will order the requested remedy solely on the basis of such consent. In such cases, the panel gives effect to an understood party agreement as to the disposition of their case (whether by virtue of deemed admission, or on a no-fault basis).
In some cases, despite such respondent consent, a panel may in its discretion still find it appropriate to proceed to a substantive decision on the merits. Scenarios in which a panel may find it appropriate to do so include (i) where the panel finds a broader interest in recording a substantive decision on the merits – notably recalling UDRP paragraph 4(b)(ii) discussing a pattern of bad faith conduct, (ii) where while consenting to the requested remedy the respondent has expressly disclaimed any bad faith, (iii) where the complainant has not agreed to accept such consent and has expressed a preference for a recorded decision, (iv) where there is ambiguity as to the scope of the respondent’s consent, or (v) where the panel wishes to be certain that the complainant has shown that it possesses relevant trademark rights.”
The Panel does not consider the present matter an appropriate matter to exercise its discretion to proceed to a substantive decision on the merits. The Panel notes its obligation pursuant to paragraph 10(c) of the Rules to ensure that the administrative proceeding takes place with due expedition.
The Panel is satisfied that the Respondent, by its emails of August 11 and August 19, 2020, has provided a genuine, unconditional and unilateral consent to the transfer of the Domain Name to the Complainant and the Panel so orders the transfer of the Domain Name to the Complainant.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <monsterenergy.monster> be transferred to the Complainant.
Date: September 17, 2020