WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. Bobby Neptune
Case No. D2012-1679
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 Bobby Neptune of Fayetteville, Arkansas, United States of America.
2. The Domain Name and Registrar
The disputed domain name <redbullroadtrip.com> is registered with GoDaddy.com, LLC. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 22, 2012. On August 22, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 24, 2012, 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 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 27, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was September 16, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 17, 2012.
The Center appointed Knud Wallberg as the sole panelist in this matter on October 1, 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 producer of the well-known 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 159 countries all over the world and the Complainant has sold over 4.6 billion units in 2011.
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 is televised both live and in extended highlights on a multitude of TV channels around the world. The Complainant further organizes the Red Bull Music Academy and is the sponsor of the Formula 1 team Red Bull Racing, as well as of various sports clubs including the Major League Soccer team Red Bull New York.
The Complainant is the owner of various registered trademarks, including:
1. International Registration 961854 RED BULL with priority date September 27, 2007;
2. International Registration 956851 RED BULL and device with priority date July 25, 2007;
3. USPTO Registration No. 3086964 RED BULL ENERGY DRINK & Device with priority date December 13, 2001;
4. USPTO Registration No. 3092197 RED BULL with registration date of May 16, 2006;
The disputed domain name was first registered on July 11, 2008.
5. Parties’ Contentions
The Complainant asserts that it is the owner of multiple registrations and applications of trademarks consisting of or containing the 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 disputed domain name <redbullroadtrip.com> is “redbull”, which is identical with the various trademarks and trademark applications containing the RED BULL mark owned by the Complainant. The Complainant adds that the word “roadtrip” 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 it 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 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 the disputed domain name <redbullroadtrip.com> redirects the user to the website “www.echolitemedia.com” on which the Respondent or a third party is offering various media services.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the statements and documents submitted by the parties.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements are satisfied:
(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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate.
A. Identical or Confusingly Similar
The disputed domain name <redbullroadtrip.com> combines the Complainant’s registered trademark RED BULL in its entirety with the addition of the generic term “roadtrip”.
The Panel finds that the disputed domain name <redbullroadtrip.com> is confusingly similar (in the sense of the Policy) to the Complainant’s registered trademark because it contains the mark in its entirety. The addition of the generic term “roadtrip”” as suffix to the trademark to form the disputed domain name does not, to this Panel, dispel a finding of confusing similarity. It has also long been held by UDRP panels that the gTLD suffix does not preclude a finding of confusing similarity where it otherwise exists, as it does in the present case.
The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled in relation to the disputed domain name.
B. Rights or Legitimate Interests
According to the Complaint, the Complainant has not licensed or otherwise permitted the Respondent to use its trademark.
Given the circumstances of this case, the Panel is of the opinion that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not rebutted this and the way the Respondent has been and is using the disputed domain name (see below in C) does not support a finding of rights or legitimate interests.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy are also fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides an example of circumstances which shall be evidence of registration and use in bad faith:
i) circumstances indicating that the holder has registered or has acquired the 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 that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
ii) the holder has registered the 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 the holder has engaged in a pattern of such conduct; or
iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s website or location or of a product or service on the holder’s website or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
Given the circumstances of the case and in particular the extent of use of the Complainant’s trademark, the reputation and the distinctive nature of the mark, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant’s mark. Further, the Panel finds that the Respondent could not have been unaware of the fact that the disputed domain name it chose could attract Internet users in a manner that is likely to create confusion for such users.
The Panel therefore finds that the disputed domain name was registered in bad faith.
The disputed domain name <redbullroadtrip.com> is redirected to the website “www.echolitemedia.com” which is a website on which a company called Echolite Media offer various media related services. There does not appear to be any use of or reference to RED BULL on the website. Nevertheless, the Panel finds that the Respondent by its registration and use of the disputed domain name, intentionally created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the disputed domain name with the purpose of attracting Internet users to the website for commercial gain.
Noting that the disputed domain names incorporate a well-known trademark, that no response has been filed, and that there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain name, and considering all the facts and evidence, the Panel therefore finds that the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case.
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 <redbullroadtrip.com> be cancelled.
Dated: October 15, 2012