WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Monster Energy Company v. Steve Carman / WhoisGuard Protected, WhoisGuard, Inc.
Case No. D2017-0358
1. The Parties
The Complainant is Monster Energy Company of Corona, California, United States of America ("United States"), represented by Knobbe, Martens, Olson & Bear, LLP, United States.
The Respondent is Steve Carman of Fishers, Indiana, United States / WhoisGuard Protected, WhoisGuard, Inc. of Panama City, Panama.
2. The Domain Name and Registrar
The disputed domain name <monsterenergy.store> is registered with NameCheap, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 22, 2017. On February 23, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 23, 2017 and March 1, 2017, 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 March 1, 2017 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 March 2, 2017.
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 March 6, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 26, 2017. The Respondent did not submit any formal response, but sent an email to the Center on March 23, 2017. Accordingly, the Center informed that it would proceed to appoint the Administrative Panel on March 27, 2017.
The Center appointed Timothy D. Casey as the sole panelist in this matter on April 7, 2017. 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 an international beverage company that has been selling a range of products under the MONSTER ENERGY brand, starting in 2002, in numerous countries and at over 300,000 retail stores and outlets in the United States. Complainant sells approximately 3 billion cans of beverages per year worldwide, with retail sales worldwide exceeding USD 6 billion per year. Complainant's website features the MONSTER ENERGY brand and hosts approximately 439,000 visitors per month. Complainant has millions of followers and "likes" in social media platforms and receives extensive press coverage as a result of its beverages, its company and its other activities associated with the same.
Complainant owns rights throughout the world in numerous trademark registrations that include MONSTER ENERGY as an element of the mark, including United States Trademark Registration Nos. 3,057,061; 3,134,842; 4,036,681; 3,044,314; 4,721,433; 5,114,854; 5,013,706; 4,860,491; 4,534,414; 4,856,373; 4,532,292; 4,989,137; 4,879,793; 4,030,735; and 4,036,680 (the "MONSTER ENERGY Trademarks"), the first of which registered in 2006. Complainant also owns numerous domain names containing the MONSTER ENERGY Trademarks and has been involved in at least 16 previous.
The disputed domain name was registered on January 25, 2017. The disputed domain name currently resolves to a website that appears to automatically generate advertisements, at least some of which are related to energy beverages.
5. Parties' Contentions
Complainant contends the disputed domain name is identical to the MONSTER ENERGY Trademarks. The mere addition of the generic TLD suffix ".store" is not sufficient to differentiate or distinguish the disputed domain name from the MONSTER ENERGY Trademarks and can be ignored. Further, Complainant contends that the disputed domain name suggests that Respondent's website is operated by Complainant because it is an online store selling Complainant's beverages and other related beverages to customers.
Complainant further contends that Respondent has no right or legitimate interest in the disputed domain name because Respondent does not use and has made no demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services, nor does Respondent have any relationship with Complaint authorizing any use of the MONSTER ENERGY Trademarks, nor does Respondent appear to be making any legitimate noncommercial or fair use of the disputed domain name. For example, Complainant notes that Respondent's website merely provides links to other commercial websites and offers not original content, goods or services of its own.
As for evidence of bad faith, Complainant alleges that the MONSTER ENERGY Trademarks are well known worldwide, such that Respondent could not have been unaware of the MONSTER ENERGY Trademarks at the time of registration of the disputed domain name. Complainant further alleges that the mere parking of the disputed domain name at a website that automatically generates advertisements to Complainant's own products and products of competitors constitutes bad faith. Similarly, Complainant alleges that Respondent's use of a privacy service, that hides the underlying registrant's identity, further constitutes bad faith.
The Respondent did not reply to the Complainant's contentions. Respondent did send an email reply to one of the Center's email communications, but Respondent's reply appeared to be directed to someone other than the Center and did not substantively address any of Complainant's contentions.
6. Discussion and Findings
In view of Respondent's failure to reply to Complainant's contentions, the Panel will treat Complainant's contentions as true and undisputed unless it is unreasonable or unnecessary to do otherwise.
A. Identical or Confusingly Similar
Complainant owns numerous registrations for the MONSTER ENERGY Trademarks in the United States and elsewhere around the world for goods associated with beverage products. Accordingly, the Panel finds that Complainant has trademark rights in the MONSTER ENERGY Trademarks.
Complainant contends that the disputed domain name incorporates the entirety of and is identical to the MONSTER ENERGY Trademarks and that the generic TLD is either irrelevant or further contributes to confusion between the disputed domain name and Complainant's trademarks. While the disputed domain name incorporates a generic TLD, namely ".store", the additional term does nothing to distinguish the disputed domain name from the MONSTER ENERGY Trademarks because the incorporated term only serves to associate MONSTER ENERGY with goods offered by Complainant in association with the MONSTER ENERGY Trademarks. Aside from the space between words, the disputed domain name is identical to the MONSTER ENERGY Trademarks, and certainly is confusingly similar to the MONSTER ENERGY Trademarks. The Panel agrees that the gTLD does nothing to further distinguish the disputed domain name from the MONSTER ENERGY Trademarks.
The Panel finds that the disputed domain name is confusingly similar to a trademark in which Complainant has rights.
B. Rights or Legitimate Interests
The Panel finds that Respondent has no right or legitimate interest in the disputed domain name. Respondent does not appear to be commonly known by the disputed domain name. Complainant has not authorized Respondent to use or register the disputed domain name. The automatically generated advertisements on Respondent's website do nothing to create any legitimate interest in the disputed domain name as it is well established that such advertisements do not constitute a bona fide offering of goods or services.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Given the timing of Complainant's registration of the MONSTER ENERGY Trademarks and use in association with the noted goods, and the timing of Respondent's subsequent registration of the disputed domain name, using terms that clearly associate the disputed domain name with Complainant's goods, registration of the disputed domain name was more likely than not in bad faith.
The Panel is not as convinced that merely parking a domain name at a website or using a privacy service necessarily constitutes bad faith on their own, but use of the disputed domain name with a website automatically generating advertisement for Complainant's products and those of its competitors, does constitute use in bad faith.
The Panel concludes that the disputed domain name was registered and is being used in bad faith.
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.store> be transferred to the Complainant.
Timothy D. Casey
Date: April 27, 2017