The Complainant is Red Bull GmbH of Fuschl am See, Austria, represented by Drzewiecki, Tomaszek & Wspólnicy Spólka Komandytowa, Poland.
The Respondent is Oneandone Private Registration of Chesterbrook, Pennsylvania, United States of America; Gibson Sarah, bkg-artagency of Montreal, Canada. 2. The Domain Name and Registrar
The disputed domain name is registered with 1&1 Internet AG (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 22, 2012. On October 22, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 23, 2012, 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 November 1, 2012 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 amendment to the Complaint on November 5, 2012.
The Center verified that the Complaint together with the amendment to the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 8, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 28, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 29, 2012.
The Center appointed Ladislav Jakl as the sole panelist in this matter on December 6, 2012. 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.
As the Registration Agreement for the disputed domain name is in English, and the Respondent did not submit any comments regarding this question. Pursuant the Rules, paragraph 11, in absence of an agreement between the parties, the language of the administrative proceeding shall be the language of the registration agreement. Therefore the Panel, taking into account the circumstances of this case and a number of recent UDRP proceedings and the reasons cited therein decides that the language of the administrative proceedings is English (BrandStrategy, Inc. v. BusinessService Ltd.,WIPO Case No. 2007-0749; Laboratoire Biosthétique Kosmetik GmbH & Co. KG and MCE S.A.S. v. BusinessService Ltd.,WIPO Case No. D2007-1836). 4. Factual Background
The Complainant is a worldwide producer of energy drinks. It is the producer of the famous RED BULL energy drink, which was first sold in Austria in 1987 and internationally since 1992. Currently, the RED BULL energy drink is sold in 159 countries all over the world and the Complaint has sold over 4,6 billion units in 2011. The RED BULL trademarks are protected in 205 jurisdictions worldwide, such as in the United States of America, Switzerland, Canada, Germany, the United Kingdom, the Russian Federation, Australia, Brazil, South Africa, Hong Kong, China, Taiwan, Japan and Saudi Arabia. In addition, the Complainant holds various registered Community trademark registrations or applications. As examples, the Complainant has submitted as Annex G copies of the following registrations to the Complaint:
- International Madrid registration “Red Bull & Device“, reg. No. 956851, priority date July 25, 2007, designated for the United States with US registration No. 3718691;
- International Madrid registration “RED BULL”, registration No. 961854, priority date March 19, 2008;
- United States registration RED BULL ENERGY DRINK & Device (in color), registration No. 3479607, priority date October 29, 2007;
- United States registration RED BULL, reg. No. 3092197, priority date December 31, 2003.
WIPO panels have already stated in various cases, the Complainant’s trademark RED BULL is famous, as it has a very strong reputation and is widely known all over the world (Red Bull GmbH v. Jon Bing, c/o Red-B,WIPO Case No. D2011-0072; Red Bull GmbH v. Tommy Ortiz,WIPO Case No. D2011-2222; Red Bull GmbH v. Pregio Co., Ltd., WIPO Case No. D2006-0909; Red Bull GmbH v. Web Wax Designer,WIPO Case No. D2006-0746).
The Complainant has run its business under name RED BULL in Austria since 1987 and internationally since 1992. The Complainant operates its main website at “www.redb”.
Moreover, the Complainant registered a large number of domain names containing the RED BULL mark, both under generic and country-code top level domains. In 2011, the RED BULL websites “www.redb” received approx. 213 million page views. Further evidence of the activities of the Complainant can be found on the Complainant’s main website at “www.redb”.
The disputed domain name was registered on October 15, 2012. 5. Parties’ Contentions A. Complainant
The Complainant states that the dominant part of disputed domain name is confusingly similar to the registered trademark RED BULL, which has been registered by the Complainant as trademark in numerous countries all over the world and moreover registered a large number of domain names containing the RED BULL trademark. The addition of the suffix “staff” is not relevant and will not have any impact on the overall impression of the dominant part of the name RED BULL, instantly recognizable as a world famous trademark. As the Complainant and its trademark is widely known for conducting of his business, said suffix is rather fitted to strengthen the impression that the disputed domain name belongs to, or is affiliated with the Complainant. The Complainant further contends that only addition of the term “staff” does not change the overall impression of the designation and does not reduce the likelihood of confusion, as stated by the WIPO Panel recently in the case of the domain name (Red Bull GmbH v. Domains by Proxy Inc New Gold Mine, WIPO Case No. D2007-0684; Red Bull GmbH v. Emory Virgil, WIPO Case No. D2005-0381). As well, the addition of the respective generic top-level domain “.com” does not have any impact on the overall impression of the dominant portion of the disputed domain name and is therefore irrelevant to determining the confusing similarity between the trademark RED BULL and the disputed domain name.
As to legitimate interests, in respect of the disputed domain name, the Complainant contends that it is obvious that the Respondent does not have any rights or legitimate interests in using the disputed domain name since the Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or any variations thereof and that the name of its owner has not any resemblance with the words “red bull”. Furthermore the Complainant contends that the Respondent has neither prior rights nor legitimate interests to justify the use of the already well-known trademark RED BULL and therefore there is no relationship between the Complainant and the Respondent. The Respondent has registered the disputed domain name to create the misleading impression of being in some way associated with the Complainant and is quite obviously trying to exploit the fame and reputation of the Complainant’s trademarks. The Respondent had no legitimate reason for registering the Complainant’s trademark as a domain name and he was and is quite obviously trying to receive commercial gain, misleadingly divert consumers, tarnish the Complainant’s trademark and reputation and to disrupt Complainant’s business.
The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, so as to confer a right or a legitimate interest in it in accordance with paragraph 4(c)(i) of the Policy.
As to bad faith, the Complainant states that the Respondent has registered the disputed domain name, which corresponds to the trademarks and domain name of the Complainant, in order to abusively take benefits from its notoriety and that is inconceivable that the Respondent registered disputed domain name unaware of the Complainant’s rights and reputation. The Complainant argues that the trademark RED BULL is one of the best known trademarks all over the world and the Respondent must have been aware of this fact when it deliberately registered the disputed domain name and that the Respondent’s obvious intent was to misleadingly divert consumers to his website, causing confusion among consumers by creating the impression of a relation with or sponsorship or endorsement of the Respondent by the Complainant. The Respondent is using the disputed domain name in bad faith, in particular has not constructed an active web page under the disputed domain name, but is forwarding Internet users to Red Bull’s official domain name of the Complainant. The Complainant argues that the Respondent is using disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to websites, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of its websites.
In accordance with paragraph 4(i) of the Policy, the Complainant requests the Panel to order that the disputed domain name be cancelled. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
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 or service mark 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 burden of proving that all three elements are present lies with the Complainant. A. Identical or Confusingly Similar
The disputed domain name includes the Complainant’s trademark RED BULL and the descriptive term “staff”. Such a combination of the Complainant’s trademark and descriptive term does not avoid the confusing similarity (Accor v. Vu Duy Truong, N/A,WIPO Case No. D2011-0093; Accor v. Lee Dong Youn,WIPO Case No. D2008-0705; and Accor S.A. v. .,WIPO Case No. D2007-1257). The mere addition of the gTLD suffix “.com” is irrelevant because the generic top level domain suffix is not a distinctive element when assessing whether the disputed domain names are identical or confusingly similar to the Complainant’s trademarks (Accor v. Noldc Inc,WIPO Case No. D2005-0016; and Alstom v. Itete Peru S.A., WIPO Case No. D2009-0877). Mere addition of a descriptive term to a complainant’s trademark does not adequately distinguish the domain names from the trademark pursuant to the Policy, paragraph 4(a)(i). See Wal -Mart Stores, Inc. v. Gerry Senker,WIPO Case No. D2006-0211; HSBC Holdings Plc v. David H. Gold,WIPO Case No. D2001-0343; F. Hoffmann-La Roche AG v. Whois Defender, Inc.,WIPO Case No. D2006-0717; Sanofi-Aventis v. Pluto Domain Services Private Limited, WIPO Case No. D2008 -1483; Sanofi-Aventis v. N/A, WIPO Case No. D2009-0705; America Online, Inc. v. Anson Chan,WIPO Case No. D2001-0004, Red Bull GmbH v. Domains by Proxy Inc New Gold Mine, WIPO Case No. D2007-0684; Red Bull GmbH v. Emory Virgil, WIPO Case No. D2005-0381.
For all the above cited reasons, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademark, in which the Complainant has rights, and therefore the condition of paragraph 4(a)(i) of the Policy is fulfilled. B. Rights or Legitimate Interests
The Panel accepts the arguments submitted by the Complainant, unchallenged by the Respondent, that Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or any variations thereof and that the name of its owner has not any resemblance with the words “red bull” and that there is no relationship between the Complainant and the Respondent. There is no doubt that the Respondent has registered the disputed domain name to create the misleading impression of being in some way associated with the Complainant, trying to exploit the fame and reputation of the Complainant’s trademark. Moreover, the Respondent had no legitimate reason for registering the Complainant’s trademark as a domain name and he was and is quite obviously trying to receive commercial gain, misleadingly divert consumers, tarnish the Complainant’s trademark and reputation and to disrupt Complainant’s business. Moreover, the Panel finds that the disputed domain name is not used for a bona fide offering of goods or services and the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. There is a consensus view that such behavior cannot be considered a bona fide offering of goods or services, or a non commercial or fair use. See The Gap, Inc. v. Deng Youqian, WIPO Case No. D2009-0113; Bridgestone Corporation v. Horoshiy, Inc., WIPO Case No. D2004-0795; Deutsche Telekom AG v. Dong Wang, WIPO Case No. D2005-0819; PRL USA Holdings, Inc. v. LucasCobb, WIPO Case No. D2006-0162; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110; Hoffmann-La Roche Inc. v. Samuel Teodorek,WIPO Case No. D2007-1814.
For the above-cited reasons, and based on the Panel’s findings below, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, and that the requirements of paragraph 4(a)(ii) of the Policy are therefore fulfilled. C. Registered and Used in Bad Faith
Under paragraph 4(a)(iii) of the Policy, the Complainant must prove that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) sets out certain circumstances which, in particular but without limitation, are to be construed as evidence of both. These include, inter alia, paragraphs 4(b)(ii), (iii) and (iv):
(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of his website or of a product or service on that website or location.
The disputed domain name was registered on October 15, 2012. The Complainant’s United States trademark registration RED BULL, Reg. No. 3092197, has priority date of December 31, 2003. And the others above mentioned trademarks registrations are prior to the registration of the disputed domain name.
In the Panel’s view, it is implausible that the Respondent was unaware of the Complainant’s trademark when he registered the disputed domain name. Bad faith has already been established where a domain name is so obviously connected with a well-known trademark that its very use by someone with no connection to the trademark suggests opportunistic bad faith (LEGO Juris A/S v. Reiner Stotte,WIPO Case No. D2010-0494; Sanofi-aventis v. Nevis Domains LLC,WIPO Case No. D2006-0303). There is no doubt to this Panel that the Respondent registered the disputed domain name to prevent the Complainant from reflecting its trademark in the disputed domain name and that this type of conduct constitutes evidence of the Respondent’s bad faith (L’oreal v. Chenxiansheng,WIPO Case No. D2009-0242). Moreover the Panel finds that the Respondent has registered the disputed domain name in order to prevent the owner of the trademark RED BULL from reflecting the mark in a corresponding domain name, the Complainant’s trademark being very famous at the time the disputed domain name was registered. The Panel further finds that by using the Complainant’s trademark to divert Internet users to an unrelated site the Respondent is attempting, for commercial gain and thus to disrupt the Complainant’s business. The Respondent’s registration and use of the disputed domain name are in bad faith because the Respondent intentionally attempts to attract Internet users who have an interest in purchasing or obtaining additional information about RED BULL goods and services, and then forwards them to other websites, which may result in financial benefit to the Respondent. Such conduct has been found to be indicative of bad faith in previous UDRP decisions such as Six Continents Hotels, Inc. v. Ramada Inn,WIPO Case No. D2003-0658.
For the above cited reasons, the Panel finds that the disputed domain was registered and is being used in bad faith. Therefore, the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case. 7. Decision
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 be cancelled, as requested by the Complainant.
Ladislav Jakl
Sole Panelist
Date: December 18, 2012
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