WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. Mohd Atif
Case No. D2012-0722
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 Mohd Atif of Hyderabad, Andhra Pradesh, India.
2. The Domain Name and Registrar
The disputed domain name <redbullfacts.com> is registered with GoDaddy.com, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 5, 2012. On April 5, 2012, the Center transmitted by email to GoDaddy.com, LLC a request for registrar verification in connection with the disputed domain name. On April 5, 2012, GoDaddy.com, LLC. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on April 12, 2012.
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 April 13, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was May 3, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 4, 2012.
The Center appointed Gabriel F. Leonardos as the sole panelist in this matter on May 11, 2012. 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 is the owner of multiple registrations and applications of trademarks consisting of or containing the RED BULL mark.
The various trademark registrations and applications of the Complainant for RED BULL cover an extensive range of goods and services and span all of the 45 trademark classes. The Complainant and its subsidiaries hold national and international trademark registrations or applications consisting of or containing the mark RED BULL in Austria and further 205 jurisdictions worldwide such as India, the United States of America, Canada, Germany, the United Kingdom, the Russian Federation, Australia, Brazil, South Africa, Hong Kong, China, Taiwan, Japan and Saudi Arabia. In addition, the Complainant holds various registered European Community trademarks and trademark applications. As examples, Complainant submitted copies of the following registrations in Annex G to this Complaint:
1- International Registration no. 972114 for RED BULL with priority date March 19, 2008;
2- International Registration no. 961854 for RED BULL with priority date March 19, 2008;
3- Indian trademark, registration no. 1239477 for RED BULL (device) with priority dated September 24, 2003;
4- Indian trademark, registration no. 1203997 RED BULL (label) with priority dated June 4, 2003.
The disputed domain name <redbullfacts.com> was registered on December 13, 2011.
No detailed information is provided about the Respondent’s activities, apart from what is mentioned below by the Complainant.
5. Parties’ Contentions
The Complainant claims to be the largest worldwide producer of energy drinks and 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 word and the Complainant has sold over 4.1 billion units in 2010, in particular over 19.3 million units in India. The RED BULL marks are protected in 205 jurisdictions worldwide.
Since the Complainant’s launch in 1987, its marketplace penetration was focused on TV, cinema and radio. The Complainant organizes several events, attracting thousands of spectators at each event. Another essential part of the Complainant’s marketing activities is sponsorship of sport events, in particular the Formula One Racing.
The Complainant submitted evidence that its involvement in sports and other events has contributed to make the RED BULL energy drink and the trademark RED BULL well-known in many countries and famous in Austria (affidavit of Dr. Volker Viechtbauer, General Counsel of the Complainant, provided as Annex E with enclosures, and statistics of studies conducted in 2003 in Germany and Austria, where 83,7% and 90% of the general public spontaneously associated the mark with the product RED BULL energy drink).
The Complainant is the registrant of a large number of domain names containing the RED BULL mark, both under generic and country-code top level domains.
The Complaint states that, by virtue of the long and extensive use, prior UDRP panels have already stated in various cases that the Complainant’s trademark is famous, as it has got a very strong reputation and is widely known all over the world.
The Complainant’s main website at “www.redbull.com” contains information on the Red Bull energy drink, sport activities, video records of sport events sponsored by the Complainant and links to other Red Bull websites, all of which regard marketing activities in relation to the famous trademark RED BULL. In 2009, the Red Bull websites received approximately 271.0 million page views.
Respondent is the owner of the disputed domain name <redbullfacts.com>.
The Complainant argues that the disputed domain name is confusingly similar to the trademark RED BULL, as it incorporates Complainant’s famous trademark in its entirety with the generic addition of the “facts”. In this sense, the Complainant refers to prior UDRP cases wherein the panel established that the incorporation of a complainant’s mark in full within a disputed domain name may be sufficient to establish confusing similarity between the mark and the disputed domain name.
Therefore, the Complainant argues that the distinctive part of the disputed domain name in dispute is “redbull”, which is identical to the various trademarks and trademark applications containing the RED BULL mark owned by the Complainant.
The Complainant states that the Respondent has no rights or legitimate interests in the disputed domain names, as the Respondent is not making any legitimate noncommercial or fair use of the disputed domain name, the Respondent is not commonly known as ”Red Bull”, and the Complainant has not authorized the Respondent to use the RED BULL trademark.
Finally, the Complainant argues that the disputed domain name is registered and used in bad faith.
The Complainant concludes that the Respondent intent was to misleadingly divert consumers to his website, causing confusion among consumers by creating the impression of a relation with or sponsorship or endorsement of the Respondent by the Complainant. It is apparent that the intent of the Respondent was to exploit the reputation of the Complainant and the RED BULL trademarks.
Referring to prior UDRP cases, the Complainant concludes that the Respondent appears to have registered and has used the disputed domain name to attract for commercial gain Internet users searching the official website at “www.redbull.com” to his or third party’s website.
The Complainant requests that the Panel issue a decision that the disputed domain name be cancelled.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove each of the following:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant is the owner of the RED BULL trademark, registered and well-known in a number of countries, including India – the location of the Respondent according to the publicly available WhoIs information.
The relevant part of the disputed domain name is “redbullfacts”. The Panel concludes that the disputed domain name consist of the Complainant’s trademark RED BULL, with the addition of the generic word “facts”. As stated in many UDRP cases, the addition of a generic term does not necessarily distinguish a domain name from a trademark.
The generic word may even add to the confusing similarity (see Scholastic Inc. v. 366 Publications, WIPO Case No. D2000-1627, holding that “[t]he addition of the generic term ‘online’…is not a distinguishing feature. In fact, in this case it seems to increase the likelihood of confusion because it is an apt term for [the] Complainant’s online business”); see also F. Porsche AG v. Glenn Stefan Karlsson-Springare, WIPO Case No. D2011-1727, and Audi AG and Volkswagen AG v. Glenn Karlsson-Springare, WIPO Case No. D2011-2121 (“The additional word “environment” following the trademarks AUDI, VW and VOLKSWAGEN in the disputed domain names is merely generic and does not avoid a finding of confusing similarity of the disputed domain names with Complainants’ trademarks.”)
The Panel therefore concludes that the disputed domain name <redbullfacts.com> is confusingly similar to the Complainant’s trademark RED BULL.
B. Rights or Legitimate Interests
Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy, see Clerical Medical Investment Group Limited v. Clericalmedical.com (Clerical & Medical Services Agency), WIPO Case No. D2000-1228 (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
By not submitting a response, the Respondent has failed to invoke any circumstance which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name, or to rebut the Complainant’s prima facie case under this paragraph of the Policy.
The Respondent is not an authorized agent or licensee of the Complainant’s products or services and has no other permission to apply for any domain name incorporating the trade mark RED BULL. See Compagnie de Saint Gobain v. Com-Union Corp., WIPO Case No. D2000-0020 (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
There is nothing in the Respondent’s name that indicates it may have become commonly known by the disputed domain name, enabling it to establish a legitimate interest in <redbullfacts.com>, nor any evidence in the present record to indicate that the Respondent is making any legitimate noncommercial or fair use of the disputed domain name. To the contrary – the Panel finds that, because the Respondent is redirecting Internet users to another site at “www.wordpress.org” and is advertising it, there can be no issue of non-commercial use. Such use can not establish legitimate interests here.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
As the Complainant has described and proved, the trademark RED BULL is well-known, as prior UDRP panels have already stated (see, e.g., Red Bull GmbH v. Pregio Co., Ltd., WIPO Case No. D2006-0909; Red Bull GmbH v. Web Wax Designer, WIPO Case No. D2006-0746), and the trademark registrations are covering, among other countries, India – the location of the Respondent according to the publicly available WhoIs information.
The Complainant sent two cease and desist letters to the Respondent asking for cancellation the disputed domain name, on January 31, 2012 and February 13, 2012, both without reply, which the Panel finds is evidence of bad faith here.
Additionally, registration of a well-known trademark by a party with no connection to the owner of the trademark, no authorization and no apparent legitimate purpose to use the trademark is a strong indication of bad faith. See Société pour l’Oeuvre et la Mémoire d’Antoine de Saint Exupéry - Succession Saint Exupéry - D’Agay v. Perlegos Properties, WIPO Case No. D2005-1085.
As also shown by the Complainant, the Respondent has used <redbullfacts.com> to redirect Internet users to the website at “www.wordpress.com” by creating a likelihood of confusion with the Complainant’s mark. This use of the disputed domain name for intentionally attempt to attract, for commercial gain, Internet users to Respondent’s 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 Respondent’s disputed website, is evidence of registration and use of the disputed domain name in bad faith, as states paragraph 4(b)(iv) of the Policy.
Accordingly, the Panel concludes that the disputed domain name was registered and is being used in bad faith.
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 <redbullfacts.com> be cancelled as requested in the Complaint.
Gabriel Francisco Leonardos
Dated: May 25, 2012