The Complainant is Red Bull GmbH of Fuschl am See, Austria, of Austria, represented by Drzewiecki, Tomaszek & Wspólnicy Spólka Komandytowa, Poland.
The Respondent is Jinsoo Yoon of Daegu, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with DropC 644 LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 18, 2016. On November 18, 2016, 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 confirming that the Respondent is listed as the registrant and providing the Respondent's contact details.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 24, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 14, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on December 15, 2016.
The Center appointed Dennis A. Foster as the sole panelist in this matter on December 21, 2016. 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, an Austrian company, has marketed a beverage internationally under the RED BULL trademark for decades, generating considerable revenue. The Complainant has also used that trademark in conjunction with many sporting, music and other events worldwide, so that the Complainant has registered domain names, such as , for use in that regard. The Complainant has registered its RED BULL mark with numerous authorities around the globe, including with the proper authority in the Republic of Korea (i.e., Registration No. 883431B, registered May 13, 2005; and Registration No. 1108568A, registered on May 5, 2011), the domicile of the Respondent.
The disputed domain name, , is owned by the Respondent, who registered the name on April 28, 2016. The disputed domain name resolves to a website that provides links to third-party websites that offer opportunities to procure tickets to various events. 5. Parties' Contentions A. Complainant
- The Complainant is an Austrian company that began selling a beverage in Austria under the brand name, "Red Bull", in 1987. By 1992, the beverage was marketed internationally by the Complainant under the same brand name. In 2015, over 5.9 billion units of the beverage were sold worldwide, with some 8.6 million being distributed in the Republic of Korea, the domicile of the Respondent.
- The Complainant has spent considerable sums in marketing the "Red Bull" brand name throughout the world, including the Republic of Korea. Moreover, the brand name has become linked with many significant events involving sports, music, fashion and other cultural activities. As a result, the brand is world famous.
- The Complainant has conducted business over the Internet through its domain name. It has also registered other domain names, including , for business purposes.
- The Complainant has obtained registrations for its RED BULL trademark, or variations thereof, in 202 jurisdictions throughout the world, including with the appropriate authority in the Republic of Korea.
- The disputed domain name, , is identical to the RED BULL mark because the name contains the mark in its entirety along with the inconsequential inclusion of the word "tickets" and the generic Top-Level Domain ("gTLD"), ".com".
- The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not licensed or otherwise permitted the Respondent to use the Complainant's mark. The Respondent is not commonly known as the disputed domain name. The disputed domain name is attached to a website providing links to third-party websites that offer ticket acquisition opportunities, a service that Complainant also offers to Internet users. That use does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of the name, as it is an attempt to profit by pay-per-click fees through confusion with the ticket information found at the Complainant's website found at .
- The disputed domain name was registered and is being used in bad faith. The Respondent ignored the Complainant's cease-and-desist letters with respect to use of the disputed domain name, an indication of bad faith on the part of the Respondent. Given the world fame of the RED BULL mark, the Respondent's registration and use of the disputed domain name is an intentional attempt to mislead and divert Internet users to the Respondent's website for his commercial gain.
- Finally, the Respondent's past pattern of registering infringing domain names and his having lost several prior UDRP proceedings, are a clear indication that the Respondent is once again operating in bad faith in registering and using the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In accordance with paragraphs 4(a)(i) - (iii) of the Policy, the Panel may find for the Complainant and grant a transfer of the disputed domain name, , if the Complainant can prove that:
- The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Many prior UDRP panels have found the Complainant to have appropriate rights in its RED BULL trademark for Policy purposes, and the Complainant has furnished the Panel with sufficient evidence (Annex G of the Complaint) of its valid registration with the proper authorities for that mark. Ergo, the Panel concludes that the Complainant does indeed possess the requisite rights in said trademark for the purposes of these proceedings. See, Red Bull GmbH v. Stefan Kozak,WIPO Case No. D2015-2143; Red Bull GmbH v. Yung Jake,WIPO Case No. D2014-2035; D, Inc. v. Nurhul Chee / Robert Murry,WIPO Case No. D2008-0230 ("...it is consensus view among Panelists that if a complainant owns a registered trademark it satisfies the threshold requirement of having trademark rights"); and Repsol YPF, S.A. v. COMn.com,WIPO Case No. D2001-0741 (finding trademark registration with the proper authority to be sufficient to establish trademark rights for Policy paragraph 4(a)(i) purposes).
The Panel notes that the disputed domain name, , does not match exactly the RED BULL trademark. However, countless Policy decisions have noted that the inclusion of a generic term such as "tickets" along with the addition of an obligatory gTLD like ".com" does not prevent a disputed domain name from being confusingly similar to a valid trademark. Most pertinent in this case is that the Complainant operates in the ticket acquisition arena ‒ hence its ownership of the domain name, , among other similar names ‒ which only adds to the confusion between the disputed domain name and the RED BULL mark. Thus, the Panel concludes that the disputed domain name is confusingly similar to that mark. See, Red Bull GmbH v. Prateek Agrawal, EsoftWorld / Redbull Financial, Redbull Financial Services / Your's Red Bull Global Research Private Limited, Red Bull Global,WIPO Case No. D2015-0452 (which found , , , and to be confusingly similar to the mark, RED BULL); Quintessentially (UK) Limited v. Mark Schnorrenberg/ Quintessentially Concierge,WIPO Case No. D2006-1643 (finding the to be confusingly similar to the QUINTESSENTIALLY mark); and AGUAS DE CABREIROA, S.A.U. v. Hello Domain,WIPO Case No. D2014-2087 ("It is well established in decisions under the UDRP that generic Top-Level Domain ('gTLD') indicators (e.g. '.com', '.info', '.net', '.org') may be considered irrelevant in assessing confusing similarity between a trademark and a disputed domain name.").
Accordingly, the Panel finds that the Complainant has proved that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Respondent has provided no evidence, and there is no other indication in the Record, that he, Jinsoo Yoon, is commonly known as the disputed domain name . Moreover, Mr. Yoon, who declined to file a Response, has supplied the Panel with no evidence to rebut the Complainant's contention that the disputed domain name is attached to a website that features pay-per-click links to third-party websites which offer opportunities to acquire tickets to various kinds of events. Given that the Complainant also provides ticketing opportunities to Internet users in connection with its RED BULL trademark, to which the Panel has found the disputed domain name to be confusingly similar, the Panel views such efforts by the Respondent to constitute neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the name. As a result of the foregoing, the Panel believes that none of the criteria in Policy paragraph 4(c) can be used to support the proposition that the Respondent has rights or legitimate interests in the disputed domain name. See, VIVO S.A. and PORTELCOM PARTICIPAÇÕES S.A. v. Domains By Proxy - NA Proxy Account Niche Domain Proxy Manager,WIPO Case No. D2010-0925 ("The use of distinctive trademark terms to direct Internet users to a pay-per-click link farm parking page that offers goods or services competing with the trademark owner is well established under the Policy not to constitute a bona fide offering of goods or services or to constitute fair use"); and The American Automobile Association, Inc. v. A Domain Privacy / Transure Enterprise Ltd,WIPO Case No. D2010-0565 (...the Respondent's unauthorised use of the disputed domain name incorporating the Complainant's registered trademark and relevant descriptors in order to attract Internet users to pay-per-click landing pages promoting competing businesses is not a bona fide commercial use.").
Due to the difficulty in proving a negative proposition, the Complainant has not furnished conclusive evidence to the Panel that the Respondent has no rights or legitimate interests in the disputed domain name. On the other hand, through its proof that the name is confusingly similar to the RED BULL mark and its assertion that there has been no license or permission enabling the Respondent to legitimately use that mark, the Complainant has sustained a prima facie case that the Respondent lacks such rights or interests. Since Respondent has offered no rebuttal evidence and the Panel has concluded that Policy paragraph 4(c) is otherwise inapplicable in this case, the Panel is compelled to rule that the prima facie case is sufficient to support a finding in favor of the Complainant with respect to this issue. See, Philip Morris USA Inc. v. yfmg,WIPO Case No. D2010-0058 ("Once the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, the burden shifts to the Respondent to show that it has rights or legitimate interests in respect to the disputed domain name."); and Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270.
As reasoned above, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
As have found several previous UDRP panels, the Panel believes that the Complainant's RED BULL mark enjoys worldwide fame. Therefore, on that basis, the Panel concludes that the Respondent could not have reasonably believed that his use of the disputed domain name would not infringe upon the Complainant's rights in that mark, and thus the name must have been registered and used in bad faith. See, Red Bull GmbH v. Yung Jake, supra ("The RED BULL trademark is arguably internationally famous and has a strong reputation."); Red Bull GmbH, Audi AG v. Thijjs van der Tuin,WIPO Case No. D2016-0061 ("Registration of a domain name including a well-known trademark by a party with no connection to the owner of the trademark and no authorization and no legitimate purpose to use the mark is a strong indication of bad faith"); and Gray Television Group, Inc. v. Manila Industries, Inc.,WIPO Case No. D2007-0504 ("There is substantial authority that registration of a domain name that is confusingly similar to a famous trademark by any entity that has no relationship to that mark is itself sufficient evidence of bad faith registration and use.").
If the circumstances explained above were insufficient to support a finding of bad faith on the part of the Respondent, then surely his penchant for and pattern of registering domain names that violate the trademark and/or service mark rights of others provide another good reason for the Panel to find against him. This penchant and pattern are clearly evident in the many rulings by previous Policy panels against the Respondent. Therefore, on that basis, the Panel also determines that the disputed domain name was registered and is being used in bad faith per Policy paragraph 4(b)(ii). See, Les Castels – Camping & Caravanning v. Jinsoo Yoon,WIPO Case No. D2016-0457; Joël Blomet and Prevor v. Jinsoo Yoon,WIPO Case No. D2015-1476 ("...the Respondent has been involved in several UDRP cases...in which the domain names in those cases were transferred to the complainants. The Panel finds that such conduct constitutes bad faith registration in that the Respondent has engaged in a pattern of conduct under Policy, paragraph 4(b)(ii)."); Ironfx Global Limited v. Jinsoo Yoon,WIPO Case No. D2014-2174; Verizon Trademark Services LLC v. Jinsoo, Yoon, Nic Yoon, Jinsu Yoon, Jinsoo Yoon,WIPO Case No. D2011-0247; and Groupe Canal+ Company v. Jinsoo Yoon,WIPO Case No. D2006-1240.
Per these conclusions, the Panel finds that the Complainant has proved that the disputed domain name was registered and is being used in bad faith. 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 transferred to the Complainant.
Dennis A. Foster
Sole Panelist
Date: January 4, 2017
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