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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Red Bull GmbH v. Whois Agent, Whois Privacy Protection Service, Inc. / Namin Mitudi

Case No. D2016-1554

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 Whois Agent, Whois Privacy Protection Service, Inc. of Kirkland, Washington, United States of America / Namin Mitudi of Aomori, Japan.

2. The Domain Name and Registrar

The disputed domain name <redbulldoodleart.com> is registered with eNom, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 29, 2016. On July 29, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 29, 2016, the Registrar 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 17, 2016 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 19, 2016.

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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 22, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 11, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 12, 2016.

The Center appointed Gabriela Paiva Hantke as the sole panelist in this matter on September 16, 2016. 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 largest worldwide producer of the “Red Bull” energy drink, which was first sold in Austria in 1987 and has been sold internationally since 1992. Currently, the “Red Bull” energy drink is sold in 171 countries all over the world and its sales volume has grown from 113 million serving units in 1994 to over 5.9 billion worldwide in 2015. The Complainant relies upon rights in its RED BULL mark to support its Complaint, including international trademark registration number 961854, registered on March 19, 2008, and the United States Patent and Trademark Office (“USPTO”) registration number 4647395, registered on December 2, 2014.

The Complainant also owns around 350 generic Top-Level Domains (“gTLDs”) and country code Top-Level Domains (“ccTLDs”) incorporating the RED BULL mark and operates its main website under “www.redbull.com”.

Since its launch, the Complainant’s marketplace penetration was focused on TV, cinema and radio. In 2015, the Complainant invested over EUR 627.4 million worldwide in media marketing and over EUR 88.6 million were spent in the European Union alone. In 2010, approximately EUR 60.9 million were invested in media in the United States, whereas in 2015 more than EUR 128.2 million were spent.

The Complainant’s RED BULL trademarks have been subject to constant marketing and promotion. From 1987 to 2015, more than EUR 4.6 billion were spent on marketing activities in the European Union. In 2011, approximately EUR 307.2 million were spent for marketing purposes in United States, whereas over EUR 480.6 million were spent in 2015. The Complainant has granted more than 670 licenses for the use of its trademarks since the year 1999.

In addition, The Complainant has acquired significant reputation in the media sector and as organizer of sport, music, fashion and cultural events. The complainant organized a global art project where student artists were challenged to use their artistic skills to create their best “doodle”. This project was named as the Red Bull Doodle Art.

The disputed domain name was previously owned by the Complainant from August 2011 to August 2015 in relation to the above art project.

The disputed domain name was registered on September 29, 2015 and it resolves to a website that presents Japanese language marks related to angina disease information, angina symptoms, pharmaceuticals and diet for such disease.

5. Parties’ Contentions

A. Complainant

The Complainant alleges that the disputed domain name is identical or confusingly similar to its registered RED BULL mark, that the Respondent lacks rights or legitimate interests in the disputed domain name, and that the disputed domain name was registered and is being used in bad faith. Accordingly, the Complainant requests transfer of the disputed domain name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant is the owner of multiple RED BULL trademark registrations covering extensive range of products and services of all 45 trademark classes. RED BULL is a widely known trademark related to an energy drink and there have been several UDRP cases involving the mark.

The Complainant owns trademark registrations and applications in more than 202 jurisdictions worldwide and also owns international registrations. The Complainant also owns trademarks in the European Union and in Austria, where the energy drink Red Bull started, since the year 1992.

The disputed domain name <redbulldoodleart.com> contains the trademark RED BULL of the Complainant. The additional element “doodleart” is not enough to avoid a finding of confusing similarity with the RED BULL trademark, particularly in light of the Complainant’s related art project.

In view of the above the Panel finds that the disputed domain name is confusingly similar to the trademark owned by the Complainant. Accordingly, the Complainant has satisfied the first element of the Policy.

B. Rights or Legitimate Interests

The Complainant has established ownership of the RED BULL trademark and has established that the trademark is widely used and advertised in the world for several activities as sports, musical and cultural projects.

The Complainant has not granted any license or authorization to the Respondent to use the RED BULL trademark, the Respondent has no connection with the Complainant and its trademark RED BULL and the Respondent is not commonly known by the disputed domain name.

In the Panel’s view, the allegations made by the Complainant in the Complaint constitute a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. Moreover, the Respondent did not file any response and did not seek to demonstrate any rights or legitimate interests in the disputed domain name.

In view of the above, the Panel finds that the Respondent does not have any rights or legitimate interests in the disputed domain name, and that the Complainant has therefore satisfied the second element of the Policy.

C. Registered and Used in Bad Faith

The Complainant has provided evidence of the fame and worldwide use and registrations of the RED BULL trademark. Given the notoriety of the RED BULL mark, the Panel finds that the Respondent was likely aware of the RED BULL trademark, when registering the disputed domain name in 2015. The registration of a well-known trademark as a domain name with no rights or legitimate interest is an act of registration in bad faith.

The Panel further finds that the disputed domain name is being used in bad faith to misleadingly divert consumers looking for the Complainant to the Respondent’s website, causing confusion and creating the false impression among public of some relationship with the Complainant’s RED BULL mark. This is especially so in light of the Complainant’s “Red Bull Doodle Art” project.

In fact, the Panel notes that the website at the disputed domain name has information in Japanese language with respect to health issues related to a disease, and the Panel finds that such use, under a domain name confusingly similar to a well-known trademark as RED BULL constitutes bad faith use.

In view of the above, the Panel concludes that the Respondent registered and is using the disputed domain name in bad faith.

Therefore, the Panel finds that the Complainant satisfied the third element of the Policy.

7. Decision

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, <redbulldoodleart.com> be transferred to the Complainant.

Gabriela Paiva Hantke
Sole Panelist
Date: September 30, 2016

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