The Complainant is Red Bull GmbH, Austria, represented by TALIENS, Germany.
The Respondent is Christos Bozikis, Greece.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 19, 2021. On October 19, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 21, 2021, 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. The Center sent an email communication to the Complainant on October 22, 2021, 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 amended Complaint on October 25, 2021.
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 October 28, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 17, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 18, 2021.
The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on November 29, 2021. 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 BackgroundThe Complainant is the producer of the 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 173 countries. In the European Union alone the marketing expenses amounted to approximately EUR 329 million in 2020.
The Complainant owns many national and international trademark registrations consisting of or containing the “RED BULL,” such as International Trademark no. 961854 RED BULL with the priority date of September 27, 2007 and registered amongst others for goods and services in classes 32 and 41 designating e.g. Greece, where the Registrant is located.
The Complainant is active on social media and has organized and sponsored events and activities in the cultural and sports sector. The latter comprises events and activities in connection with boats and jets.
RED BULL is a well-known trademark and previous panel decisions have met such a character for the purposes of the UDRP.
The website to which the disputed domain name resolved used the term “red bull” and further elements of the RED BULL trademark cosmos (i.e. a red colored bull device) for a business operated by the Respondent on the island of Rhodes under the name “red bull jet”.
The Complainant contacted the Respondent in writing and by phone with the contact details listed on the website “www.redbulljet.com”. Several cease and desist letters were sent before the commencement of the procedure, being the last and fourth letter on October 12, 2020 (served on October 15, 2020). Later, in December, the Complainant’s local counsel also had several calls with the Respondent. As a result of such contacts, in early December 2020 the parties discussed that the Respondent would renounce using the designation “red bull jet” in the future and also the disputed domain name
The disputed domain name was registered on August 28, 2017 and currently resolves to a landing page “web for sale”.
5. Parties’ Contentions A. ComplainantThe Complainant contends to have registered national and international trademarks consisting of or containing RED BULL in Austria and more than 180 jurisdictions worldwide.
The Complainant asserts that the disputed domain name is confusingly similar to the Complainant’s RED BULL mark since it contains the word marks “red bull” entirely. The addition of the term “jet” does not avoid the confusing similarity between the disputed domain name and the Complainant’s trademark where RED BULL is clearly recognizable.
Further, the gTLD “.com” of the disputed domain name could be disregarded under the first element confusing similarity test.
With regard to the second element, the Complainant affirms not to have licensed or otherwise permitted the Respondent to use any of its trademarks, or to register or use any domain name incorporating any of those marks. Moreover, the Respondent is making use of the disputed domain name for commercial gain to misleadingly divert consumers. In this regard, the Complainant refers to the website to which the disputed domain name resolves where a speedboat excursion can be booked and therefore excludes a “non-commercial” use.
The Complainant further alleges that the Respondent´s website is designed in a way susceptible to pass off as an official Red Bull website. Such conclusion is based on the broad use of the term “red bull” in a red font, the elements of the Complainant’s trademark cosmos such as the bull or by proposing adventure events with boats which perfectly matches the Complainant’s activity portfolio on the Respondent’s website.
In addition, the Complainant asserts that to the best of its knowledge, the Respondent is not commonly known by the disputed domain name.
Finally and with respect to the third element, the Complainant states that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location pursuant to paragraph 4(b)(iv) of the Policy.
Besides, the Complainant understands that RED BULL being a well-known trademark, the Respondent knew, or should have known, that its registration would be confusingly similar to the Complainant’s mark. Such a finding is reinforced, in the Complainant’s view, by the Respondent’s lack of rights or legitimate interests in the disputed domain name.
The Complainant also holds that by using the disputed domain name the Respondent is reproducing in its entirety the RED BULL trademark rights, that the addition of the term “jet” refers to the main goal activities that the Complainant and its trademarks are related to, and that the website to which the disputed domain name resolves has a very similar appearance with the Complainant’s rights and cosmos. To sum up, the Complainant believes that such uses are susceptible to pass off as an official Complainant’s website or to be considered as a partner of the Complainant while such relation does not exist. The Complainant also highlights the use of a privacy shield in an attempt to hide Respondent’s identity.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsUnder paragraph 4(a) of the Policy, to succeed the Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
There are no exceptional circumstances within paragraph 5(e) of the Rules to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response. Under paragraph 14(a) of the Rules in the event of such a “default” the Panel is still required “to proceed with a decision on the complaint”, whilst under paragraph 14(b) it “shall draw such inferences there from as it considers appropriate”. This dispute resolution procedure is accepted by the domain name registrant as a condition of registration.
A. Identical or Confusingly SimilarParagraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
First, the Complainant must show evidence of its trademarks rights. Indeed, the Complainant has showed its rights over the RED BULL trademark. Then, the test for confusing similarity involves a comparison between the Complainant’s mark RED BULL and the disputed domain name
The Panel looks at the section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “…where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing”. The mere addition of other terms such as “jet” does not prevent a finding of confusing similarity under the first element. See WIPO Overview 3.0 section 1.8.
The Panel also notes that gTLDs are generally irrelevant to the consideration of identity or confusing similarity between a trademark and a domain name.
Therefore, the first requirement is met under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsTypically a panel’s assessment will normally be made on the basis of the allegation and the evidence presented in the complaint and any filed response. According to the UDRP the overall burden of proof is on the complainant but that may result in the often impossible task of “proving a negative”. Thus, once the complainant makes a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant allegations and evidence showing rights or legitimate interest in the domain name. See WIPO Overview 3.0. section 2.1.
In the present case, there is a lack of response of the Respondent after the complaint was duly notified.
Accordingly, the test for this element must focus on whether the Complainant has made out a prima facie case or not. The Panel is satisfied with the prima facie case on the following findings: the disputed domain name and the corresponding website to which it directs imply affiliation with the Complainant, its mark RED BULL and the sport activities carried out by the Complainant. Besides, there is no disclaimer on the website to avoid confusion. It is an accepted principle that the use of a domain name suggesting affiliation cannot be “legitimate”. See The Procter & Gamble Company v. Whoisguard, Inc. / Enzo Gucci, Xtremcare, Tony Mancini, USDIET, USDIET Ltd,WIPO Case No. D2016-1881.
Moreover, the Panel finds that the business carried out by the Respondent though the disputed domain name is taking advantage of the well-known RED BULL trademark and therefore is not making a bona fide offering of goods or services in accordance with paragraph 4(c)(i) of the Policy, nor is the Respondent making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue in accordance with paragraph 4(c)(iii) of the Policy.
The Panel also accepts that there is no licence in favour of the Respondent to use in any manner the Complainant’s trademark nor is the Respondent commonly known by the disputed domain name.
As noted above the Respondent did not rebut the Complainant’s prima facie case.
Accordingly, the Complainant is deemed to have satisfied the second element under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThe Panel is prepared to infer that the Respondent knew, or should have known, that its registration would be identical or confusingly similar to the Complainant’s mark. The incontestable well-known position of RED BULL support such a finding.
Paragraph 4(b) of the Policy depicts a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following:
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
See Tencent Technology (Shenzhen) Co.Ltd v. Super Privacy Service c/o Dynadot, WIPO Case No. D2018-0391 where the panelist states: “Generally, a finding that a domain name has been registered and is being used in bad faith requires an inference to be drawn that the respondent in question has registered and is using the disputed domain name to take advantage of its significance as a trademark owned by (usually) the complainant.”
Back under the second element the Panel has found that both the disputed domain name and the website to which the domain resolved involved not only false affiliation of the Respondent with the Complainant, but also the nonexistence of bona fide offerings since the business carried out by the Respondent was taking advantage of the well-known RED BULL trademark.
Besides, the Respondent did not file a Response to the complaint and thus did not provide any explanation for the Respondent’s choice to register the disputed domain for the purposes of the business “redbulljet”. The website to which the disputed domain name resolves is an undeniable reproduction of RED BULL trademark and its cosmos.
Finally, the attempt to sell the disputed domain name once the proceeding has started suggests and confirms Respondent’s bad faith registration and use.
The Panel concludes that the Complainant has established the third element of the Complaint and therefore, the disputed domain name was registered and used in bad faith.
7. DecisionFor 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,
Manuel Moreno-Torres
Sole Panelist
Date: December 13, 2021