WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Monster Energy Company v. See PrivacyGuardian.org / Daniel Valverde
Case No. D2021-2308
1. The Parties
Complainant is Monster Energy Company, United States of America (“United States”), represented by Knobbe, Martens, Olson & Bear, LLP, United States.
Respondent is See PrivacyGuardian.org, United States / Daniel Valverde, United States.
2. The Domain Name and Registrar
The disputed domain name <monsterenergy.best> is registered with NameSilo, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 15, 2021. On July 16, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 16, 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 Complainant on July 19. 2021 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on July 24, 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 Respondent of the Complaint, and the proceedings commenced on August 2, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 22, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 26, 2021.
The Center appointed Lorelei Ritchie as the sole panelist in this matter on September 9, 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
Complainant is a United States company. Since 2002, Complainant has offered for sale beverages and other products under its MONSTER ENERGY mark. Complainant owns several registrations for the MONSTER ENERGY mark, including in the United States where Respondent lists an address of record. These include United States Registration Nos. 3057061 (registered February 7, 2006), and 4036681 (registered October 11, 2011). Complainant additionally owns the registration for the domain name <monsterenergy.com>, which Complainant uses as a means to communicate with consumers about goods and services offered under its MONSTER ENERGY mark.
The disputed domain name <monsterenergy.best> was registered on June 2, 2021. The disputed domain name is not currently linked to an active website. Respondent nevertheless has no affiliation with Complainant, nor any license to use its marks.
5. Parties’ Contentions
Complainant contends that (i) the disputed domain name <monsterenergy.best>, is identical or confusingly similar to Complainant’s trademarks, (ii) Respondent has no rights or legitimate interests in the disputed domain name; and (iii) Respondent registered and is using the disputed domain name in bad faith.
Specifically, Complainant contends that it owns the MONSTER ENERGY mark, which is “recognized” and “well-known” globally, with over USD 30 billion in revenue and over USD 8.5 billion in marketing expenditures over almost two decades of sales. Complainant contends that Respondent has incorporated Complainant’s well-known MONSTER ENERGY mark into the disputed domain name, with the addition only of the Top-Level Domain (“TLD”), “.best”. Complainant contends that Respondent lacks rights or legitimate interest in the disputed domain name, and rather has registered and is using it in bad faith, having simply acquired the disputed domain name for Respondent’s own commercial gain.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel must first determine whether the disputed domain name <monsterenergy.best> is identical or confusingly similar to a trademark or service mark in which Complainants has rights in accordance with paragraph 4(a)(i) of the Policy.
The Panel finds that it is. The disputed domain name incorporates in full Complainant’s MONSTER ENERGY mark. Typically a TLD may be ignored for purposes of considering this first element. See Compagnie Générale des Etablissements Michelin v. Whois Guard Inc., Whois Guard Protected/Saad Zaeem, Caramel Tech Studios, WIPO Case No. D2017-0234. See also Calvin Klein, Inc., Calvin Klein Trademark Trust v. Whois Guard Protected, Whois Guard, Inc./StayU Kasabov, WIPO Case No. D2015-2306.
The Panel therefore finds that the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights in accordance with paragraph (4)(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel next considers whether Complainant has shown that Respondent has no “rights or legitimate interest,” as must be proven to succeed in a UDRP dispute. Paragraph 4(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name “in connection with a bona fide offering of goods or services”; (ii) demonstration that respondent has been “commonly known by the domain name”; or (iii) “legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.
No evidence has been presented to the Panel that might support a claim of Respondent’s rights or legitimate interests in the disputed domain name, and Respondent has no license from, or other affiliation with, Complainant.
Therefore, the Panel finds that Complainant has provided sufficient evidence of Respondent’s lack of “rights or legitimate interests” in accordance with paragraph 4(a)(ii) of the Policy which Respondent has not rebutted.
C. Registered and Used in Bad Faith
There are several ways that a complainant can demonstrate that a domain name was registered and used in bad faith. As noted in Section 4 of this Panel’s decision, the disputed domain name is not currently linked to an active website. It is nevertheless well established that having a passive website does not necessarily shield a respondent from a finding of bad faith. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 3.3, which notes that the “non-use of a domain name” does not necessarily negate a finding of bad faith.
Rather, a panel must examine “the totality of the circumstances,” including, for example, whether a complainant has a well-known trademark, and whether a respondent conceals its identity and/or replies to the complaint. Respondent here did not formally respond to the Complaint, and utilized a privacy service. Furthermore, Complainant has demonstrated a high level of consumer exposure to its marks, particularly in the United States, where Respondent is apparently located. Numerous prior UDRP panels have found Complainant’s MONSTER ENERGY mark to be well known. See, for example, Monster Energy Company v. Cai Manyi Manyicai, WIPO Case No. D2016-0301; Monster Energy Company v. Geremy Bordeleau, WIPO Case No. D2016-1308; and Monster Energy Company v. Joshua Jones, WIPO Case No. D2021-0329.
Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith for purposes of paragraph (4)(a)(iii) of the Policy.
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 <monsterenergy.best> be transferred to Complainant.
Date: September 17, 2021