WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. roostertail
Case No. D2010-1386
1. The Parties
The Complainant is Red Bull GmbH of Fuschl am See, Austria, represented by Drzewiecki, Tomaszek & Wspólnicy Spólka Komandytowa, Poland.
The Respondent is roostertail of Detroit, Michigan, United States of America.
2. The Domain Name and Registrar
The disputed domain name <redbullairracing.com> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 17, 2010. On August 17, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On August 18, 2010, GoDaddy com, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 20, 2010 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 amendment to the Complaint on August 20, 2010.
The Center verified that the Complaint together with the amendment to 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 August 23, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 12, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 13, 2010.
The Center appointed Pablo A. Palazzi as the sole panelist in this matter on September 17, 2010. 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
Red Bull Gmbh is the producer of the famous 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 157 countries all over the world and the Complainant has sold over 3.8 billion units in 2009.
The Complainant has promoted the RED BULL trademark and the design of two fighting bulls by very substantial international advertising. Much of this advertising by its nature is global or regional.
The Complainant organizes the RED BULL X-Fighters event and the RED BULL AIR RACE WORLD CHAMPIONSHIP which both attract thousands of spectators at each event. The RED BULL AIR RACE WORLD CHAMPIONSHIP is an international series of events which has taken place in up to twelve large cities around the world during the course of one year and which is televised both live and in extended highlights on a multitude of TV channels around the world.
The Complainant is the owner of various registered trademarks, including:
1. CTM 005225611 RED BULL (stylized) with priority date July 27, 2006;
2. IR 961854 RED BULL with priority date September 27, 2007;
3. IR 972114 RED BULL with priority date September 27, 2007;
4. US 3086964 RED BULL ENERGY DRINK & Device with priority date December 13, 2001;
5. US 3092197 RED BULL with priority date of December 31, 2003;
6. IR 945573 RED BULL & Device with priority date of July 25, 2007;
7. IR 962252 AIR RACE WORLD SERIES & Device with priority date January 18, 2007.
5. Parties’ Contentions
The Complainant asserts that it is the owner of multiple registrations and applications of trademarks consisting of or containing the famous RED BULL mark. The Complainant alleges that it started its business under the name RED BULL in Austria since 1987 and internationally since 1992, and operates its main website under “www.redbull.com”. The Complainant asserts that although “red” and “bull” are both ordinary words, they form a distinctive combination. The Complainant alleges that the distinctive part of the domain name in dispute <redbullairracing.com> is “redbull”, which is identical with the various trademarks and trademark applications containing RED BULL mark owned by the Complainant. The Complainant adds that the word “airracing” as a common term does not change the overall impression of the designation as being a domain name connected to the Complainant and does not reduce the likelihood of confusion.
The Complainant asserts that he has not licensed or otherwise permitted the Respondent to use any of its trademarks or any variations thereof, or to register or use any domain name incorporating any of those marks. The Complainant adds that the Respondent is not commonly known by the disputed domain name.
The Complainant alleges he it sent a Cease and Desist Letter to the Respondent on August 4, 2010 but the Respondent never responded. The Complainant asserts that RED BULL is one of the best known trademarks all over the world and the Respondent must have been aware of this fact when it deliberately registered the disputed domain name. The Complainant says that both the Respondent’s registration and use of the disputed domain name were intentional to attract Internet users to the website. The Complainant asserts that on the website “www. redbullairracing.com” the Respondent publishes the video records of the RED BULL AIR RACE WORLD CHAMPIONSHIP events and while watching, it displays sponsored links and pay-per-click advertising.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, a complainant must prove the following:
(i) the respondent’s 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 respondent’s domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has shown that it owns numerous trademark registrations of the mark RED BULL in different countries.
The disputed domain name <redbullairracing.com> combines the registered trademarks RED BULL in its entirety with the addition of the terms “air racing”. Such terms correspond with the RED BULL AIR RACE WORLD CHAMPIONSHIP organized and sponsored by the Complainant and is quite similar with the domain name previously registered by the Complainant <redbullairrace.com>.
In sum, the domain name is confusingly similar to the Complainant’s marks. Therefore, the Panel finds that the Complainant has fulfilled the requirements of paragraph 4(a)(i) 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 the respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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.
There is no evidence of the existence of any of those rights or legitimate interests. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the domain name or to use the trademarks in the domain name. The Complainant has prior rights in the trademarks which precede the Respondent’s registration of the domain name. The Complainant has alleged that the domain name does not correspond to the Respondent’s name, that the Respondent is not commonly known by the domain name and that the Respondent does not use the domain name for any fair or noncommercial use.
In this Panel’s view, the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the domain name and thereby shifted the burden to the Respondent to produce evidence to rebut this presumption (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, section 2. 1, Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and Croatia Airlines d.d. v. Modern Empire Internet Ltd. , WIPO Case No. D2003-0455).
The Respondent has failed to show that it has acquired any trademark rights in respect of the domain name, that it is commonly known by the domain name or that the domain name is used in connection with a bona fide offering of goods or services.
Therefore, the Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The Complainant must prove both that the domain name was registered in bad faith and that it is being used in bad faith.
The Complainant’s trademarks have a strong reputation, and have evidently been known to the Respondent when registering the disputed domain name. The disputed domain name is highly unlikely to have been registered if it were not for Complainant’s trademarks. In this respect see Red Bull GmbH v. fhxmedia, WIPO Case No. D2010-0085; Red Bull GmbH v. iWork Inc., WIPO Case No. D2008-0875. Red Bull GmbH v. PREGIO Co., Ltd., WIPO Case No. D2006-0909 and Red Bull GmbH v. Web Wax Designer, WIPO Case No. D2006-0746.
In the instant case, the Panel considers that the Respondent must have had knowledge of the Complainant’s rights in the RED BULL trademark when it registered the domain name, since the Complainant’s trademark is a widely known trademark.
On the website at the disputed domain name, the Respondent publishes the video records of the RED BULL AIR RACE WORLD CHAMPIONSHIP events and while those videos are displayed, the Internet user also finds sponsored links and pay-per-click advertising. Such use of the disputed domain name can only be explained by the intent of the Respondent to attract Internet traffic by capitalizing on the Complainant’s RED BULL trademark. Such use of the disputed domain name constitutes sufficient evidence of the bad faith of the Respondent under paragraph 4(b)(iv) of the Policy. See Red Bull GmbH v. Domains by Proxy Inc. /New Gold Mine, WIPO Case No. D2007-0684 and Red Bull GmbH v. iWork Inc., WIPO Case No. D2008-0875.
The Complainant’s allegations with regard to the Respondent’s registration and use of the domain name in bad faith have been considered by the Panel. These allegations have not been contested by the Respondent.
Therefore, taking all the circumstances into account and for all the above reasons, the Panel concludes that the Respondent has registered and is using the domain name 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 <redbullairracing.com> be cancelled.
Pablo A. Palazzi
Dated: October 1, 2010