Complainant is Red Bull GmbH of Fuschl am See, Austria, represented by Drzewiecki, Tomaszek & Wspólnicy Spólka Komandytowa, Poland.
Respondent is Hong Wei Zhang, Guang Zhou Wei Zhen Yuan Yin Liao You Xian Gong Si of Guangzhou, China, self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the "Registrar"). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on February 13, 2018. On February 14, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 23, 2018, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
On February 23, 2018, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On February 26, 2018, Complainant submitted a request that English be the language of the proceeding. Respondent did not comment on the language of the proceeding by the specified due date.
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 Respondent of the Complaint in both English and Chinese, and the proceedings commenced on March 14, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 3, 2018. On March 15, 2018, the Center received an informal communication from Respondent in Chinese, however no Response was filed by the specified due date. On April 4, 2018, the Center notified the Parties of Commencement of Panel Appointment Process.
The Center appointed Yijun Tian as the sole panelist in this matter on April 27, 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. 4. Factual Background A. Complainant
Complainant, Red Bull GmbH, is a company incorporated in Austria. Complainant is a worldwide producer of RED BULL Energy Drink. It was first sold in Austria in 1987 and internationally since 1992. The RED BULL Energy Drink is currently sold in 172 countries all over the world. Its sales volume has grown from 113 million serving units in 1994 to over 6 billion worldwide in 2016. In China, the number rose from approximately 1.1 million serving units in 2014 to over 1.9 million serving units in 2016. Complainant is also a manufacturer of the BULL Energy Drink. The BULL Energy Drink was launched in Austria, Germany, Brazil and the United States of America in 2013.
Complainant is the owner of multiple registrations and applications of trademarks consisting of or containing the BULL and RED BULL mark and covering an extensive range of goods and services, such as:
- International Registration (covering China) 1064924A BULL with priority date May 26, 2010 and registration date November 18, 2010 (Annex G to the Complaint);
- European Union Registration 015288186 BULL with registration date August 22, 2016 (Annex G to the Complaint);
- International Registration 867085 BULL with priority date June 2, 2005 and registration date July 15, 2005 (Annex G to the Complaint);
- International Registration (covering China) 961854 RED BULL with priority date September 27, 2007 and registration date 19 March, 2008 (Annex G to the Complaint);
Complainant is also the registrant of a large number of domain names containing the BULL or RED BULL mark, both under generic and country-code Top Level Domains, including domain names such as , , and . B. Respondent
Respondent is Hong Wei Zhang, Guang Zhou Wei Zhen Yuan Yin Liao You Xian Gong Si, apparently an individual residing in Guangzhou, China. The disputed domain name was registered on August 11, 2017, currently resolving to a website providing products and services similar to Complainant's and indicating that the website is the official website of an authorized dealer of Complainant. 5. Parties' Contentions A. Complainant
Complainant contends that the disputed domain name is confusingly similar to Complainant's BULL and RED BULL trademarks. The disputed domain name includes BULL mark in its entirety. The addition of the generic terms "usa" and "west" at the beginning of the disputed domain name as well as the generic Top-Level Domain ("gTLD") ".com" are not sufficient to eliminate the confusing similarity.
Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant contends that the disputed domain name was registered and is being used in bad faith.
Complainant requests that the disputed domain name be cancelled. B. Respondent
Respondent did not formally reply to Complainant's contentions. On March 15, 2018, Respondent submitted an informal email claiming that it has a company registered in the United States of America and that it was asking for what type of information was needed. 6. Discussion and Findings 6.1. Language of the Proceeding
The language of the registration agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceeding should be English. Complainant filed initially its Complaint in English, and has requested that English be the language of the proceeding for the following reasons:
a) Complainant is an Austrian based (official language German) company, not communicating in Chinese, and purposely indicated its English speaking legal representative to prepare and file the Complaint on Complainant's behalf in English.
b) If Complainant was obligated to submit all documents in Chinese, it would have to incur substantial expenses for translation and the arbitration proceeding would be delayed.
c) Respondent knows English very well. Respondent registered the disputed domain name with the use of Latin alphabet rather than Chinese.
d) Respondent clearly communicates in English as it registered the disputed domain name which covers English words: "usa", "west", and "bull".
e) Moreover, content of the website resolved by the disputed domain name shows that Respondent can communicate in English. For example, Respondent uses English words and phrases, for example "qualification certificate", "Copyright 2018, All Rights Reserved", "West Bull", "Authorization", "America Red Bull Beverage & Foods Associated Group Ltd".
Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593). The language finally decided by the Panel for the proceeding should not be prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") further states:
"Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.
Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant's mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement." (WIPO Overview 3.0, section 4.5.1; see also L'Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585)
The Panel has taken into consideration the facts that Complainant is a company from Austria, and Complainant will be spared the burden of working in Chinese as the language of the proceeding. The Panel has also taken into consideration the fact that the disputed domain names include Latin characters and English words ("usa", "west", and "bull") and are registered in the gTLD space comprising of the Latin characters ".com" (Compagnie Gervais Danone v. Xiaole Zhang,WIPO Case No. D2008-1047).
The Panel finds that persuasive evidence in the present proceeding to suggest that Respondent may have sufficient knowledge of English. In particular, the Panel notes that, based on the evidence provided by Complainant, (a) the disputed domain name includes Latin characters ".com" and English words "usa", "west", and "bull" rather than Chinese script; (b) the content of the website resolved by the disputed domain name shows that Respondent can communicate in English. For example, Respondent uses English words and phrases, such as "qualification certificate", "Copyright 2018, All Rights Reserved", "West Bull", "Authorization", "America Red Bull Beverage & Foods Associated Group Ltd"; (c) the Center has notified Respondent of the proceeding in both Chinese and English; (d) the Center informed Respondent that it would accept a Response in either English or Chinese; and (e) Respondent has not submitted any objections for the proceeding to be in English.
Considering these circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English. 6.2. Substantial Issues
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:
(i) The disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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.
On the basis of the evidence introduced by Complainant and in particular with regards to the content of the relevant provisions of the Policy, (paragraphs 4(a) - (c)), the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel finds that Complainant has rights in the BULL marks acquired through registration. The BULL marks have been registered internationally since 2005. The disputed domain name comprises the BULL mark in its entirety, and the second part of the RED BULL mark. The disputed domain name only differs from Complainant's trademarks by the prefixes "usa", "west", and the gTLD suffix ".com" to the BULL marks. This does not eliminate the confusing similarity between Complainant's registered trademarks and the disputed domain name. (See WIPO Overview 3.0, section 1.8).
In relation to the gTLD suffix, WIPO Overview 3.0 further states:
"The applicable Top Level Domain ('TLD') in a domain name (e.g., '.com', '.club', '.nyc') is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test." (WIPO Overview 3.0, section 1.11).
Thus, the Panel finds that disregarding the gTLD suffix ".com", the disputed domain name is confusingly similar to the BULL marks.
The Panel therefore holds that Complainant fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish Complainant's trademarks.
The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant's contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1 and cases cited therein).
According to the Complaint, Complainant is the world's largest diversified resources group, employing more than 40,000 people in more than 100 operations in 25 countries.
According to the Complaint, Complainant is a worldwide producer of RED BULL Energy Drink. It was first sold in Austria in 1987 and internationally since 1992. The RED BULL Energy Drink is currently sold in 172 countries all over the world. In China, the number rose from approximately 1.1 million serving units in 2014 to over 1.9 million serving units in 2016. Complainant is also a manufacturer of the BULL Energy Drink. Complainant has rights in the BULL marks worldwide since 2005.
Moreover, Respondent is not an authorized dealer of BULL-branded products or services and moreover claiming this on its website (e.g., Respondent used terms such as "West Bull USA" and "United States Red Bull Beverage Food Group Co. Ltd" on the website resolved by the disputed domain name). By using these terms the Internet users may believe this is a website which is authorized by Complainant. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifts the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company, WIPO Case No. D2009-0610; Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name:
(a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the term "bull" in the disputed domain name and in its business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the BULL marks or to apply for or use any domain name incorporating the BULL mark and Respondent has, through the use of a confusingly similar domain name and its webpage contents, created a likelihood of confusion with the BULL marks. Noting also that apparently the website implies that it is the website associated with Complainant, potential partners and end users are led to believe that the website at the disputed domain name is either Complainant's a site of an official authorized dealer of Complainant, which it is not;
(b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name on August 11, 2017, long after the BULL marks became internationally known. The disputed domain name is confusingly similar to Complainant's BULL marks.
(c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, according to the information provided by Complainant, Respondent was in actuality advertising, offering and selling purported BULL products or services at the website "www.".
The Panel finds that Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the disputed domain name; or
(ii) 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 Respondent has engaged in a pattern of such conduct; or
(iii) 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, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other online location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on the website or location.
The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has registered and used the disputed domain name in bad faith.
The Panel finds that Complainant has a widespread reputation in the BULL marks with regard to its products and services. Complainant is also a manufacturer of the BULL Energy Drink. It is not conceivable that Respondent would not have been aware of Complainant's trademark rights at the time of the registration of the disputed domain name (in 2017) particularly given that Respondent has used Complainant's marks and the website at the disputed domain name is designed to impersonate Complainant's website.
Thus, the Panel concludes that the disputed domain name was registered in bad faith.
Complainant also has adduced evidence to show that by using the confusingly similar disputed domain name, Respondent has "intentionally attempted to attract, for commercial gain, Internet users to Respondent's websites or other online location". To establish an "intention for commercial gain" for the purpose of this Policy, evidence is required to indicate that it is "more likely than not" that intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra).
Given the widespread reputation of the BULL marks, the confusingly similar domain name, as well as the affiliation statement on the website mentioned above, the Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with Complainant, contrary to fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent's website. In other words, Respondent has, through the use of a confusingly similar domain name and webpage contents, created a likelihood of confusion with the BULL marks. Noting also the implication on the website that it is the website authorized by Complainant (Annex C to the Complaint), potential partners and end users are led to believe that the website at the disputed domain name is either Complainant's site or a site of an official authorized dealer of Complainant, which it is not. The Panel therefore concludes that the disputed domain name is being used by Respondent in bad faith.
In summary, Respondent, by choosing to register and use a domain name which is confusingly similar to Complainant's trademarks, intended to ride on the goodwill of Complainant's trademarks in an attempt to attract, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain name and the conduct of Respondent as far as the website to which the disputed domain name resolves is indicative of registration and use of the disputed domain name in bad faith.
The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy. 7. Decision
For all 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.
Yijun Tian
Sole Panelist
Dated: June 5, 2018
Full & Egal Universal Law Academy