WIPO Arbitration and Mediation Center
Red Bull GmbH v. Gestapex SL
Case No. D2006-1645
1. The Parties
The Complainant is Red Bull GmbH, Fuschl am See, Austria, represented by Schonherr Rechtsanwalte GmbH, Austria.
The Respondent is Gestapex SL, Barcelona, Spain.
2. The Domain Name and Registrar
The disputed domain name <redbullpascher.com> is registered with eNom, Inc. dba Dynames.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 22, 2006. On December 26, 2006, the Center transmitted by email to eNom, Inc. dba Dynames.com, Inc. a request for registrar verification in connection with the domain name at issue. On January 15, 2007, eNom, Inc. dba Dynames.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 January 17, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 6, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 7, 2007.
The Center appointed John Lambert as the sole panelist in this matter on February 14, 2007. 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 markets throughout the world beverages known as “energy drinks”. One of its products is called RED BULL which is distributed in 138 countries. More than 2,500 million portions of that drink were sold between 1987 (when the product was launched) and 2005. Annual sales of the drink are about €2,100 million.
Very large sums of money have been spent by the Complainant on advertising and promotion, including:
- €2,900 million between 1987 and 2005 of which €922 million was on radio, television and cinema advertising; and
- €699 million since 2005 of which €158 million was on media promotion.
The Complainant also sponsors various spectator sports. Its teams include the “Red Bull Sauber Petronas” team in motor racing and “FC Red Bull Salzburg” and “Red Bull New York” in association football.
The Complainant has registered various signs consisting of or incorporating the words RED BULL as trademarks for various goods and services in trademark registries around the world.
The disputed domain name consists of two common English words (the noun “bull” and adjective “red”), the letters “pascher” and suffix “.com”. the nearest english word to “pascher” is “pasha”, which was the title of a senior official of the ottoman empire. however, the letters “pascher” break down into two common french words, “pas” and “cher” meaning “not” and “dear” (in the sense of “expensive”) respectively.
The disputed domain name appears to have been used as the URL (universal resource locator) for a website on December 22, 2006. A screen dump of the home page of the site is enclosed with the Complaint. The bulk of the screen consisted of 12 panels headed “Produits Importants”, 9 of which appeared to offer packs of cans of the Complainant’s drink for sale in various quantities at different prices with free delivery to all regions of France (“Port gratuit pour toutes les régions de France”). For instance, a pack of 54 Red Bull was offered for sale at €90. The remaining 3 panels offered packs of sugar free Red Bull for sale (“Red Bull Sans Sucre”) on similar delivery terms. A side panel depicted a carton of Red Bull, an array of Red Bull cans, a bottle of Ricard pernod and another of 51 pastis. The home page was headed “Redbull Pascher” under which tiny French, British and Spanish flags appeared. There also appeared to be hypertext links to “Page Principal” (“Home Page”), “Qui Sommes Nous” (“About Us”), “Nos Partenaires” (Our Partners) and “Paiement et Livraison” (Payment and Delivery). However, no other page was enclosed with the Complaint.
The Panel tried to visit the site late in the evening of February 27, 2007, and again early on the morning of February 28, 2007 British time using different machines over different networks (one broadband and the other mobile phone) but was unable to access the site.
The only other information on the identity or business of the Respondent that has been provided is its corporate name and address mentioned above.
5. Parties’ Contentions
The Complainant is the registered proprietor of a large number of trademarks comprising or including the words RED BULL for a wide range of products around the world. It also has a considerable reputation and goodwill in the words RED BULL. Consumers and distributors throughout the world associate those words with the Complainant’s energy drink and none other.
The disputed domain name incorporates the words RED BULL in their entirety, the only variation being the letters “pascher” which probably stand for “pas” and “cher” or “cheap”. The Complaint fears that members of the public may be led to believe that a connection exists between the Complainant and the Respondent’s website, which is not the case. The Respondent is neither expressly nor impliedly licensed and appears to use the Complainant’s trademarks and has no other right to do so.
The obvious purpose of registering the disputed domain name would be to divert consumers of the Complainant’s product to the site described above which would amount to registration and use in bad faith.
For the above reasons the Complainant requests that the disputed domain name be canceled and offers to submit to the jurisdiction of the courts of the place where the Respondent is incorporated.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove:
(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 domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Each and every one of those elements must be present.
A. Identical or Confusingly Similar
The Complainant’s trademark registrations include CTM number 52787, which is a device consisting of the words RED and BULL above the image of 2 bulls charging towards each other superimposed on a circle, registered for a wide range of goods and services in several classes. The registration appears to be valid and subsisting.
The disputed domain name consists of the English words RED and BULL combined with what appear to be the French words “pas” and “cher”.
The Panel finds the variation to be trivial and concludes that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
There is no evidence to contradict the Complainant’s assertion that the Respondent is neither expressly nor impliedly licensed to use the RED BULL sign and/or that it is not known by, or otherwise entitled to use, that name.
It occurs to the Panel that the Respondent could deal in genuine Red Bull products at a discount and that the site described above could be an e-commerce or advertising site for those goods. However, since the Respondent declined to respond to the Complaint there is no allegation or evidence that that is the case. Moreover, the Panel was unable to find any such evidence from the searches and enquiries that he had time to make over the internet.
The Complainant had, however, anticipated that argument and referred to a number of previous decisions on the point, including, in particular, Motorola Inc v. NewGate Internet Inc, WIPO Case No. D2000-0079 and Experian Informaiton Solutions Inc. v Credit Research Inc., WIPO Case No. D2002-0095. The Complainant conceded that the registration of a domain name in connection with the distribution of branded products could be justified but only where (1) the goods or services offered for sale are genuine, (2) the site is used only to distribute such products or services, (3) the site accurately discloses the relationship between supplier and distributor, and (4) the Respondent does not try to corner the market in domain names that incorporate the registered mark. The Complainant says that the Respondent would not meet those requirements, not least because the site mentioned above advertised pernod and pastis.
In the absence of any allegation or evidence that the Respondent does indeed deal in genuine Red Bull products it is not necessary to consider the point any further. Accordingly the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists various circumstances, which, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. These include:
“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.”
The only evident purpose of a website of the kind described above is to advertise drinks for sale. The obvious purpose of using a domain name that translates into English as “Cheap Red Bull” is to attract French speaking consumers to such site. Such visitors are likely to conclude from the use of such domain name that the site belonged to or is in some way associated with the Complainant or one of its authorized distributors. The Panel also considers it more likely than not that the domain name was registered or obtained with intent to benefit commercially from the fame of the Complainant’s RED BULL mark. Accordingly, all the elements of paragraph 4(b)(iv) of the Policy appear to be present.
In the absence of any contrary evidence, the Panel finds that the disputed domain name to have been registered and to be used in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <redbullpascher.com> be canceled.
Dated: February 28, 2007