The Complainant is Monster Energy Company of Corona, California, United States of America, represented by Knobbe, Martens, Olson & Bear, LLP, United States of America.
The Respondent is Manuel Stickler of Hoersching, Austria, self-represented.
The disputed domain name <monsterenergy.app> is registered with Ledl.net GmbH (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 13, 2018. On June 13, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, 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 July 18, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same date, the Center sent an email in German and English in regard to language of proceedings. The Complainant filed an amended Complaint on June 21, 2018 and requested English to be the language of the proceedings. On June 24, 2018, the Respondent sent an email communication in English replying to the Complainants contentions and did not comment on the language of the proceedings. On July 11, 2018, the Respondent sent another email communication.
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 June 27, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 17, 2018. On July 18, 2018, the Center notified the Parties that it will proceed to Panel Appointment.
The Center appointed Kaya Köklü as the sole panelist in this matter on July 24, 2018. 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.
The Complainant is in the business of designing, creating, developing, marketing, and internationally selling beverages, particularly energy drinks. The company is active since 2002 and has its registered seat in the United States of America.
Since 2002, the Complainant owns various word and figurative MONSTER ENERGY trademark registrations around the world (cf. Annex F to the Complaint).
The Complainant also owns and operates various domain names which incorporate the trademark MONSTER ENERGY, such as <monsterenergy.com>.
The Complainant’s MONSTER ENERGY trademark was already subject to previous UDRP cases, such as Monster Energy Company v. Cai Manyi Manyicai, WIPO Case No. D2016-0301, which was decided in favor of the Complainant.
The Respondent is an individual from Hoersching, Austria.
The disputed domain name was registered recently on May 13, 2018.
The screenshots, as provided by the Complainant in the case file, show that the disputed domain name resolved to a passive landing page in the German language (cf. Annex O to the Complaint).
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is identical to its MONSTER ENERGY trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is rather argued that the disputed domain name falsely suggests that there is some official or authorized link between the Complainant and the Respondent.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent must have been well aware of the Complainant’s MONSTER ENERGY trademark, when registering the disputed domain name.
The Respondent did not formally reply to the Complainant’s contentions.
However, the Center received two informal email communications from the Respondent on June 18, 2018 and on June 24, 2018.
In his first email communication on June 18, 2018, the Respondent indicates that he has “nothing to do with any energy drinks or beverages”.
In his second email communication on June 24, 2018, he mainly alleges to be part of a student group that intends to develop an online game named “Monster – energy run”.
Furthermore, he states that at the time of the registration of the disputed domain name he “assumed from the fact that many Top-Level-Domain names haven’t been registered by the most prominent Top-Level-Domain <monsterenergy.com>, registered by the Complainant, this company had obviously no intention of using the domain name in question”.
Additionally, he points out that he understands “parts of Complainants concern and will transfer the domain name if Complainant is willing to compensate and settle the dispute in a way where we can continue with a similar domain name”.
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint’s contentions. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See, section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Complaint was submitted in English, and the Complainant has requested that English be the language of the proceeding. While the Panel notes that the Registration Agreement for the disputed domain name is in German, all communications from the Respondent have been submitted in English. Noting that the Respondent seems to have a sufficient command of the English language to understand the nature of the proceeding, as well as the Complaint, the Panel accepts the Complaint as filed in English, and has rendered its decision in English. In making this determination, the Panel has also considered that undue delay and expense would be imposed on the Complainant by requiring the Complainant to translate the Complaint and annexes into German.
The Panel finds that the disputed domain name is identical to the MONSTER ENERGY trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights. As evidenced in the Complaint, the Complainant is the owner of various MONSTER ENERGY trademark registrations around the world.
The disputed domain name is identical to the Complainant’s MONSTER ENERGY trademark as it incorporates the Complainant’s trademark in its entirety without any additions or amendments.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.
The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
While the burden of proof on this element remains with the Complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. See, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file evidence or make convincing arguments to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
The mere allegation by the Respondent that the Complainant could have registered the disputed domain name before, and hence, “had obviously no intention of using the domain name in question” is not convincing. There is no general rule that would allow third parties to register a domain name comprising a registered trademark, just because the trademark owner did not register the respective domain name himself.
Particularly, as the disputed domain name has just recently been registered, there is also no indication in the current record that the Respondent is commonly known by the disputed domain name. Also, the Respondent has failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain name.
As a conclusion, the Panel finds that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy.
The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith.
The Panel believes that the Respondent’s intention was to primarily create a likelihood of confusion among Internet users and/or to freeride on the goodwill of the Complainant’s MONSTER ENERGY trademark, apparently for commercial gain and/or to disrupt the Complainant’s business.
The Panel is convinced that the Respondent was aware of the Complainant’s trademark when he registered the disputed domain name. At the date of registration of the disputed domain name, the Complainant’s MONSTER ENERGY trademark was already prominently used worldwide for many years, including in Austria. Additionally, the Respondent did explicitly confirm in his email communication of June 24, 2018 that he was aware of the Complainant’s trademark and that he even carried out a domain name search prior to the registration of the disputed domain name.
Furthermore, the Respondent was not able to convince the Panel as regards his motivation why he registered the disputed domain name (which is identical to the Complainant’s trademark), while his alleged (and still to be developed) online game is supposed to have a different title, namely “Monster – energy run”.
Another indication for bad faith is the Respondent’s comment in his email communication of June 24, 2018 that he is only willing to transfer the disputed domain name, if he gets sufficiently compensated in order to run his alleged business with a similar domain name. This is in view of the Panel another indication for bad faith registration and use by the Respondent.
All in all, the Respondent was not able to provide convincing arguments and evidence concerning his alleged good faith when registering and using the disputed domain name.
In light of the above, the Panel cannot conceive of any good faith use of the disputed domain name which is not related to the trademark rights owned by the Complainant. Any contrary allegation raised by the Respondent is assessed by the Panel as self-serving allegation only.
Hence, the Panel is convinced that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, 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.app> be transferred to the Complainant.
Date: August 3, 2018
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