The Complainant is Red Bull GmbH of Fuschl am See, Austria, represented by Drzewiecki, Tomaszek & Wspólnicy Spółka Komandytowa, Poland.
The Respondent is Andrew Zhukov of Moscow, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with Regtime Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 20, 2012. On November 20, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 22, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On November 29, 2012, the Center transmitted the language of the proceedings document to the parties in both English and Russian. On November 30, 2012, the Complainant requested English or both English and Russian to be the language of the proceedings. The Respondent did not submit any comments.
The Center verified that 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 December 5, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was December 25, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 3, 2013.
The Center appointed Assen Alexiev as the sole panelist in this matter on January 10, 2013. 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
The Complainant is the largest worldwide producer of energy drinks. It has run its business under the name RED BULL in Austria since 1987 and internationally since 1992. It is the producer of the widely-known RED BULL energy drink, which has been sold in Austria since 1987 and internationally since 1992. The RED BULL energy drink is currently sold in 159 countries all over the world and the Complainant has sold over 4.6 billion units in 2011.
The Complainant is the owner of multiple registrations of the RED BULL trademark in many jurisdictions worldwide, including the following registrations (the “RED BULL trademark”):
- International RED BULL trademark registration No. 961854, registered on March 19, 2008 for goods and services in International Classes 25, 28, 32, 41 and 43;
- Russian РЕД БУЛЛ (“RED BULL” in Latin characters) trademark registration No. 419426, registered on October 1, 2010 for goods in International Class 32; and
- International RED BULL ENERGY DRINK trademark registration No. 871248, registered on July 28, 2005 for goods in International Class 32.
The disputed domain name was registered on September 19, 2008. 5. Parties’ Contentions A. Complainant
The Complainant contends that it has promoted the RED BULL trademark through substantial international advertising. This advertising is being carried out through sales activities, television broadcasts, Internet activities and sponsorship of sports events around the world that attract a large public audience.
This involvement of the Complainant in sports and other events has contributed to make the RED BULL trademark well known in many countries and famous in Austria. In a study carried out in 2003 in Germany and Austria, 83.7% and 90% respectively of the general public spontaneously associated the RED BULL trademark with the Complainant’s RED BULL energy drink. The reputation of the Complainant’s RED BULL trademark has been acknowledged in a number of decisions issued under the Policy (see, e.g., Red Bull GmbH v. PREGIO Co., Ltd.,WIPO Case No. D2006-0909, Red Bull GmbH v. Web Wax Designer,WIPO Case No. D2006-0746).
According to the Complainant, the disputed domain name is confusingly similar to the Complainant’s RED BULL trademark. Although “red” and “bull” are both ordinary words, they form a distinctive combination. The distinctive part of the disputed domain name is “redbull”, which is identical to the RED BULL trademark and which potential customers will instantly recognize. The additional element “blog” is a common term which does not reduce the likelihood of confusion and does not change the overall impression created by the disputed domain name of being related to the Complainant.
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not licensed its RED BULL trademark to the Respondent or otherwise permitted the latter to use it or to register or use any domain name incorporating it. The Respondent is not commonly known by the disputed domain name. The combination of the words “red” and “bull” is purely fanciful, and one would not choose this combination unless seeking to create an association to the Complainant. The Respondent has registered the disputed domain name intentionally, based on the fame and reputation of the RED BULL trademark and the activities of the Complainant all over the world, and in order to create the misleading impression of being in some way associated with the Complainant. The Respondent is trying to exploit the fame and reputation of the Complainant’s trademarks and thus to promote its own business, which shows that the Respondent has no legitimate reason for registering the disputed domain name.
The Complainant further contends that the disputed domain name was registered and is being used in bad faith. The RED BULL trademark is well known and the Respondent must have been aware of it when it registered the disputed domain name. The website associated to the disputed domain name is a “jump page” and by visiting it Internet users are redirected to the website at “/top” where the Respondent promotes its business as a provider of hosting services for blogs where Internet users can publish their videos and photos. The Respondent displays “pay-per-click” advertisements. The creation of landing pages for commercial gain constitutes bad faith exploitation of the reputation of the Complainant’s trademark and is a common example of use in bad faith. The Respondent’s intent was to misleadingly divert consumers to its website by exploiting the reputation of the Complainant’s RED BULL trademark and creating the false impression of relation with or sponsorship or endorsement of the Respondent by the Complainant.
The Complainant sent a cease and desist letter to the Respondent on August 3, 2012 and three reminders on August 9, 2012, next on September 27, 2012 and the last on October 8, 2012. The Respondent never responded.
The Complainant requests cancellation of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(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 Respondent has registered and is using the disputed domain name in bad faith.
According to the Rules, paragraph 5(b)(i), a respondent is instructed to “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”.
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with the Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present his case.
In the event of a default, under the Rules, paragraph 14(b): “…the Panel shall draw such inferences therefrom as it considers appropriate”. As stated by the panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques,WIPO Case No. D2000-0004 “[h]ere, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent”. As stated by the panel in Viacom International Inc. v. Ir Suryani,WIPO Case No. D2001-1443 “[s]ince the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. […] In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended factual and legal conclusions as proven by such evidence”.
In this administrative proceeding, the Respondent has chosen not to submit a Response. His default leads the Panel to conclude that the Respondent has no arguments or evidence to rebut the assertions of the Complainant. The Panel has to take his decision on the basis of the statements and documents before it and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. A. Preliminary issue – Language of the Proceedings
In respect of the language of the proceedings, the Panel notes that under paragraph 11 of the Rules, the language of the proceedings is the language of the registration agreement for the disputed domain name, i.e., Russian in the instant case. At the same time, the Complainant has submitted a request for English to be the language of the proceedings, and has supported it with the arguments that it is an Austrian company, not communicating in Russian, so the translation of the Complaint and the supporting documentation into Russian will incur substantial expenses on it and will delay the proceedings. Additionally, the pre-Complaint correspondence between the Complainant and the Respondent was conducted in English. The Center has given the Respondent an opportunity to respond to the Complainant’s request until December 4, 2012, but the latter chose to remain silent and did not file an objection to the request, although the invitation by the Center (sent in both English and Russian) made it clear that if the Respondent does not state its position, the Center will proceed on the basis that the Respondent has no objection to the Complainant’s request that English be the language of the proceedings. Taking the above into account, the Panel is satisfied that the Respondent does not object to English to be the language of the proceedings and that such a solution will be balanced and fair to both parties and will be in the interest of efficiency and expediency of the proceeding. Therefore, in exercise of its powers under paragraph 11 of the Rules, the Panel decides that English will be the language of the proceedings, and that all submissions of the parties and evidence in the case file, regardless of whether they are available in English or Russian, will be evaluated and taken into account by the Panel while rendering its Decision in this proceeding. B. Identical or Confusingly Similar
The Complainant has provided evidence and has thus established its rights in the RED BULL trademark, registered internationally.
It is a common practice under the Policy to disregard in appropriate circumstances the genertic top-level domains (gTLD) such as the “.com” for the purposes of the comparison under the Policy, paragraph 4(a)(i). Therefore, the relevant part of the disputed domain name is its “redbullblog” section, which contains the easily distinguishable elements “red”, “bull” and “blog”. Given the wide popularity and originality of the RED BULL trademark, it is quite likely that Internet users will regard the first two of these elements in combination and associate them with this trademark. The third element “blog”, is a generic word, and in the Panel’s view, rather than distinguishing the disputed domain name from the Complainant’s RED BULL trademark, this element is likely to be regarded as descriptive for the activities carried out under the disputed domain name, i.e., blogs related to the RED BULL products of the Complainant.
Therefore, the Panel finds that the disputed domain name is confusingly similar to the RED BULL trademark in which the Complainant has rights. C. Rights or Legitimate Interests
The Complainant claims that the Respondent has no rights or legitimate interests in the disputed domain name, and provides certain arguments in this regard. In the Panel’s assessment, the Complainant has established a prima facie case under the Policy, paragraph 4(a)(ii). It is well established that once a complainant makes out a prima facie case that the respondent has no rights or legitimate interests in a domain name, the burden shifts to the respondent to rebut the Complainant’s prima facie case by providing evidence to the contrary.
In the present case, the Respondent has chosen not to present to the Panel any allegations or documents in his defense despite the burden under the Rules, paragraph 5(b)(i) and 5(b)(ix) or the consequences that a Panel may extract from the fact of a default (Rules, paragraph 14). If the Respondent had any justification for registering or using the disputed domain name, he could have provided it. In particular, the Respondent has not contended that any of the circumstances described in the Policy, paragraph 4(c), or any other circumstance, is present in his favor.
The only information available about the Respondent is the publicly-available WhoIs information, provided by the Registrar. The WhoIs information contains no evidence of rights or legitimate interests of the Respondent in the disputed domain name which, as found above, is confusingly similar to the well-known RED BULL trademark of the Complainant, registered in many countries, including in the Russian Federation. The Respondent makes no claims of having rights or legitimate interests in respect of the disputed domain name and provides no explanation whatsoever for its registration and use. As submitted by the Complainant and not denied by the Respondent, the disputed domain name is a “jump page” and by visiting it Internet users are redirected to the website at “/top” where the Respondent promotes its business as a provider of hosting services for blogs where Internet users can publish their videos and photos, and which website contains pay-per-click advertising links to third parties’ websites. In the Panel’s view, such use cannot be regarded as noncommercial. In this situation, it is possible that Internet users seeking information about the Complainant’s products may reach the website at “/top” expecting that an affiliation of some sort exists between the Complainant and the Respondent, and then be exposed to the content of the website. In these circumstances, the Panel is prepared to accept the Complainant’s assertion that the Respondent is likely to have been aware of the RED BULL trademark at the time of registration of the disputed domain name and that the attractiveness of the RED BULL trademark has motivated the Respondent to register the disputed domain name and to use in the way described above.
Taking into account the above, the lack of denial by the Respondent of the Complainant’s contentions, and the Respondent’s likely knowledge of the goodwill associated to the Complainant’s RED BULL trademark, the Panel is prepared to accept that the Respondent's intent was to benefit from the similarity between the RED BULL trademark and the disputed domain name and to attract consumers to its website by creating the false impression of relation with or sponsorship or endorsement of the Respondent by the Complainant. In the Panel’s view, these circumstances could not be regarded as establishing rights and legitimate interests of the Respondent in the disputed domain name.
Therefore, and in the absence of any evidence or allegations to the contrary, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name within the meaning of the Policy, paragraph 4(a)(ii). D. Registered and Used in Bad Faith
For the purposes of the Policy, paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has registered the 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 holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on the holder’s website or location.
In the present case, the disputed domain name is confusingly similar to the Complainant’s RED BULL trademark, and as found above, was registered by the Respondent without having rights or legitimate interests in it, who at the same time was more likely than not being aware of the Complainant and of the goodwill of the RED BULL trademark. Having registered it, the Respondent has used the disputed domain name to redirect Internet users to a website containing information about the activities of the Respondent and pay-per-click links to other websites. As discussed in relation to the issue of rights or legitimate interests, this conduct makes it possible that Internet users searching for information about the Complainant’s products may reach the Respondent’s website expecting that an affiliation of some sort exists between the Complainant and the Respondent, and then be exposed to the content of the website, which may lead to situation, in which the Respondent benefits from the initial interest of Internet users and derives income or other advantage.
Taking all the above into account, and in the absence of any contrary evidence, the Panel is prepared to accept that the Respondent has registered and used the disputed domain name in bad faith by intentionally attempting to attract, for commercial gain, Internet users to the website at the disputed domain name by creating a likelihood of confusion with the Complainant’s RED BULL trademark as to the source, sponsorship, affiliation, or endorsement of the disputed domain name and of the website to which it redirects, which the Panel regards as evidence of bad faith registration and use of the disputed domain name under paragraph 4(a)(iii)(iv) of the Policy. 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.
Assen Alexiev
Sole Panelist
Date: January 31, 2013
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