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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Anheuser-Busch Incorporated v. Creative Marketing Strategies
Case No. D2000-0529
1. The Parties
The Complainant in this administrative proceeding is Anheuser-Busch Incorporated, One Busch Place, St. Louis, Missouri 63118, U.S.A. The Respondent is Creative Marketing Strategies, 117 Raintree Way, Willliamsburg, Virginia 23188, U.S.A.
2. The Domain Name and Registrar
The domain names in dispute are as follows: "anheuserbusch.net" and "anheuserbusch.org". The domain names were registered by Respondent with Network Solutions, Inc. (NSI) on December 9, 1998.
3. Procedural Background
On May 30, 2000, the WIPO Arbitration and Mediation Center received from Complainant, via e-mail, a complaint for decision in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation of Assigned Names and Numbers (ICANN) on August 26, 1999 ("Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999 ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (Supplemental Rules).
The complaint was filed in compliance with the requirements of the Rules and the Supplemental Rules, payment was properly made, the administrative panel was properly constituted, and the panelist submitted the required Statement of Acceptance and Declaration of Impartiality and Independence.
The instant Administrative Proceeding was commenced on June 7, 2000.
Respondent did not file a response, and a "Notification of Respondent Default" was sent by WIPO to Respondent on July 1, 2000.
The decision of the Panel was due to WIPO on or before August 16, 2000.
4. Factual Background
As set forth in the Complaint, Complainant Anheuser Busch has been using the mark ANHEUSER-BUSCH since 1876 on beer. The mark is the subject of U.S. Trademark Registration No. 909,723, which issued on March 9, 1971. See Complaint, Annex C. Complainant also has registered the domain name "anheuserbusch.com".
As noted above, Respondent registered the domain names in dispute with NSI on December 9, 1998. On February 9, 1999, counsel for Complainant sent two letters to Respondent's administrative contact, Ms. Laura Woldorf, requesting that she immediately cease all use of the domain names "anheuserbusch.net" and "anheuserbusch.org". See Complaint, Annex D.
In response, Ms. Woldorf called Complainant's counsel and offered to sell the domain names for $100,000 each. Ms. Woldorf called several times thereafter to follow-up on the status of her offer.
On March 24, 1999, Respondent's counsel sent a letter to Complainant's counsel indicating that his client "is interested in selling her rights to [the "anheuserbusch.net"] domain name to Busch, for acceptable consideration." The letter also indicated that Ms. Waldorf [sic] "does not use [the domain name]." See Complaint, Annex F.
On May 21, 1999, NSI put the domain names in issue "on hold." See Complaint, Annex H.
On July 9, 1999, Respondent's counsel called Complainant's counsel and renewed his client's offer to sell the domain names for $100,000 each. Counsel for Complainant countered with an offer not to sue in exchange for assignment of the domain names.
On January 31, 2000, NSI informed Complainant's counsel that it was removing the "hold" on the domain names in dispute. See Complaint, Annex I.
On March 8, 2000, counsel for Complainant called Respondent's counsel to discuss the matter. The call was not returned.
5. Parties' Contentions
Complainant contends that the domain names in dispute are confusingly similar to Complainant's registered mark ANHEUSER-BUSCH; that Respondent has no rights or legitimate interest in respect of the domain names; and that the domain names have been registered in bad faith.
6. Discussion and Findings
The Panel determines that Complainant has established all of the elements required under ¶4.a. of the Policy.
Respondent's domain names incorporate in full Complainant's registered mark ANHEUSER-BUSCH and, thus, may be deemed confusingly similar, if not identical, to Complainant's mark.
It is also clear that Respondent has no rights or legitimate interests in respect of the domain name. None of the circumstances set forth in ¶4.c. of the Policy is applicable.
With respect to the issue of "bad faith" registration and use 1, the Panel determines, based on the unrebutted evidence, that Respondent offered to transfer the domain names to Complainant for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain names. Pursuant to the relevant Policy (see ¶4.b(i)), such circumstances constitute evidence of "bad faith" registration and use.
In view of the above, the Panel GRANTS Complainant's request for transfer to Complainant of the domain names "anheuserbusch.net" and "anheuserbusch.org".
Jeffrey M. Samuels
Dated: August 16, 2000
1. The Panel notes that Complainant, in paragraph 12.b. of the Complaint, alleges merely that the domain names have been "registered" in bad faith. The relevant Policy requires that the domain names were registered "and are being used" in bad faith. Even though the Policy refers to "use," the Panel holds, consistent with most other Panel decisions, that where, as here, a Respondent does not "use" the domain names, it still may be determined that a domain was registered and used in bad faith. Such a holding in consistent with the examples of bad faith use and registration set forth in paragraph 4.b.(i-iii), each of which refers to situations where the domain name is not actually being used.