WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. Russell Snyder
Case No. D2007-0915
1. The Parties
The Complainant is Red Bull GmbH, Fuschl am See, Austria, represented by Schonherr Rechtsanwalte GmbH, Austria.
The Respondent is Russell Snyder, Chloride, Arizona, United States of America.
2. The Domain Names and Registrar
The disputed domain names <betterthanredbull.com> and <betterthenredbull.com> are registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 21, 2007. On June 22, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain names at issue. On June 22, 2007, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Complainant confirmed on July 5, 2007 that its requested remedy was cancellation of the disputed domain names. 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 July 6, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was
July 26, 2007. The Response was filed with the Center on July 25, 2007.
The Center appointed The Honourable Neil Anthony Brown QC as the sole panelist in this matter on August 8, 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.
On August 10, 2007, the Center received a supplemental filing from the Complainant and on the same day the Center notified the Complainant and the Panel that it was in the Panel’s discretion whether to consider it.
4. Factual Background
The Complainant is a company incorporated pursuant to the laws of Austria and is the producer of the famous high energy drink Red Bull. It has been producing that drink since 1987 and it has been sold internationally since 1994.
The Complainant has shown by evidence annexed to the Complaint that it is the registered owner of several trademarks for RED BULL, namely the trademark
number 150540 registered in Austria on September 7, 1993, number 52787 registered in the European Community on April 1, 1996, number 52803 registered in the European Community on April 1, 1996, number 3092197 registered in the United States of America on December 31, 2003, number 3086964 registered in the United States of America on December 31, 2001 and number 2946045 registered in the United States of America on December 31, 2003.
The Respondent registered the disputed domain names on March 9, 2005.
5. Parties’ Contentions
The Complainant alleges that the domain names <betterthanredbull.com> and
<betterthenredbull.com> should no longer be registered with the Respondent, but that they should be cancelled.
It contends that this should be done because, within the meaning of paragraph 4 of the Policy, the domain names are confusingly similar to the Complainant’s registered trademarks, that the Respondent has no rights or legitimate interests in the domain names and that the domain names have been registered and subsequently used in bad faith. The Complainant maintains that it can prove all three of these requirements and that the appropriate remedy is to transfer the domain names to the Complainant.
In support of its case on the first of these three elements, the Complainant relies on the registered RED BULL trademarks to which reference has already been made
(hereinafter referred to as “the RED BULL trademark” and “the trademark”). It then contends that the domain names <betterthanredbull.com> and <betterthenredbull.com> are confusingly similar to the RED BULL mark as the domain names incorporate the whole of the trademark and two other common and descriptive words that do nothing to lessen the confusing similarity to the trademark.
The Complainant then contends, to establish the second element, that the Respondent has no rights or interests in the domain names because nobody would legitimately choose the unusual combination of the words “red” and “bull” unless trying to create an association with the Complainant. Moreover, the Complainant says, the fact that the Respondent has linked the domain names to a website promoting a rival energy drink shows that he is trying to exploit the fame of the Complainant’s product to promote sales of this rival product. The Complainant also argues that the Respondent must have known of the fame of the RED BULL marks when he registered the domain names and that in any event the facts show that he could not bring himself within any of the provisions of paragraph 4(c) of the Policy.
Finally, the Complainant contends that the domain names were registered and are being used in bad faith. It contends that this is so because the Respondent must have been aware of the existence of the RED BULL marks and could only have chosen the domain names to arouse the curiosity of Internet users as to what they related to and thereby attract visitors to the website promoting the rival product. Moreover, it is argued, this must have been done with the intention of disrupting the Complainant’s business and causing confusion among consumers and for commercial gain.
In a letter to the Center the Respondent submits that the domain names are not confusingly similar to the trademarks because “Something that is Better Than something else is not The Same as that item” and that accordingly neither of the domain names would confuse “the average, reasonable internet user into thinking it is a RedBull.com affiliated site.”
He also argues that he has done nothing other than use a famous name or brand in “advertising, criticism, and voicing one’s opinion regarding a product.”
He then argues in effect that the website to which the domain names resolve is a criticism site and that that fact gives rise to a right or legitimate interest in the domain names.
6. Discussion and Findings
The first matter that must be dealt with is the request of the Complainant that the Panel should consider its Supplemental filing. The question of whether UDRP panels should receive and consider supplemental submissions is discussed in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions and that discussion is illustrated by several decisions. In the final analysis, the Panel has a discretion to decide whether to admit an unsolicited supplemental filing, a discretion that must of course be exercised on in accordance with proper principles.
The Panel in the present proceedings exercises its discretion against allowing the Complainant’s supplemental submission. The Panel has made that decision because the supplemental filing does not contain any new material, it does not contain material that would not have been known to the Complainant at the time it filed its Complaint and to admit it now would only delay proceedings that are intended to be expeditious, for such a process would necessitate the Respondent being given an opportunity to reply to the submission, when the facts and issues in the proceedings are already known.
Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
The Panel therefore turns to discuss the various issues that arise for decision on the facts as they are known.
For the Complainant to succeed it must prove, within the meaning of paragraph 4(a) of the Policy, that:
(i) The domain names are 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 names; and
(iii) The domain names have been registered and are being used in bad faith.
It is to be noted that paragraph 4 of the Policy provides that the Complainant must prove that each of the three elements is present. The Panel will therefore deal with each of these requirements in turn.
A. Identical or Confusingly Similar
The Panel notes that the domain names each contain the expression “redbull”, giving them one feature in common with the trademark and, secondly, although one domain name contains the additional expression “betterthan” and the other domain name contains the expression “betterthen”, the dominant meaning of the domain names conveyed to the Internet user is that they are domain names dealing with the
well-known energy drink Red Bull and its trademark RED BULL.
The question is whether this makes the domain names confusingly similar to the trademark. In America Online, Inc v. Jonathan Investments Inc, and AOLNEWS.COM, WIPO Case No. D2001-0918, the panel stated:
“Is it likely therefore that, because of the similarity between the Domain Name on the one hand and the Complainant’s trade mark on the other hand, people will believe that the domain name is associated in some way with the Complainant.”
Both the Complainant and the Respondent have sought to equate this issue in the present case with the considerations that have been applied in what have become known as the “sucks” cases, i.e. those cases where the domain name at issue consists of a trademark but has the word “sucks” or some other derogatory or critical term added to it as a prefix or a suffix. The Complainant has advanced the argument that the thrust of those decisions is that “the addition of the common term “sucks” does not create a new or different mark and does therefore not exclude the confusing similarity with Complainant’s marks”.
On the other hand, the Respondent has advanced the argument that some of the “sucks” cases resulted in the domain name being transferred and some of them resulted in the complaint being denied. In that regard, the Panel assumes that the reason why the Respondent cited the denial of the complaint concerning <boycottwalmart.com> in Wal-Mart Stores, Inc v. Traffic Yoon, WIPO Case No. D2006-0812 was that it showed how even the positioning of the pejorative word before rather than after the trademark may so colour a domain name that the panel may find it is not confusingly similar to the trademark.
The Panel is not convinced that the present case is strictly analogous to the “sucks” cases. In those cases, the question was whether the presence of the word made it unlikely that a trademark owner would be making such pejorative remarks about its own goods and services and hence unlikely that people would be confused into thinking that the domain names are associated with the Complainant.
In the present case, in contrast, neither the expression “betterthan” nor “betterthen” is pejorative. The former expression presumably means that whatever it is that is being invoked by the domain name is better than Red Bull. The latter presumably means the same and is a misspelling or, alternatively, it is invoking a product that might “then”, i.e. later or after it is consumed, be followed by Red Bull. But in each case, Red Bull is not being denigrated or criticized in the same way as it would be in the “sucks” cases; the other product being invoked is, of course, said to be better, but Red Bull could still be good.
The Panel finds that the question whether the domain names in the present case are confusingly similar to the trademark should be determined by examining whether, on the balance of probabilities and judged from the viewpoint of a reasonable bystander, it is likely that Internet users would believe that the domain names were “associated in some way with the Complainant.”
Applying that test, the Panel’s view is that at least some potential Internet users would believe there was an association between the domain names and the trademark.
Without taking position on the “sucks” decisions, the Panel notes that the two expressions preceding the trademark are not expressions that are clearly pejorative to the extent that it could be said, as it was said in America Online, Inc v. Jonathan Investments Inc, and AOLNEWS.COM, (supra), that “…it is inconceivable that anyone looking at this domain name will believe that it has anything to do with a company of such high repute as the Complainant.” It is certainly not inconceivable to come to that conclusion in the present case.
Furthermore, the meaning of the two expressions is reasonably clear, but the product that they are referring to is not. This increases the possibility that some users will think that it is the Complainant that is asserting in its own domain names that Red Bull is good, but that another of its own products is better. It is not inconceivable that the Complainant was responsible for designing this concept and hence the domain names to promote it.
Thirdly, there must be some doubt about what the two expressions would mean to
non-English speaking Internet users looking for Red Bull websites to check out its ingredients or availability, Red Bull merchandise or the sporting events that the Complainant sponsors. It has been said many times in the context of the “sucks” cases that if potential users, i.e. potential customers of the Complainant, might not understand the nuances of the English language and the meaning of the slang words that make the
“sucks” cases what they are, this may make a finding of confusing similarity more likely.
Thus, it was said in Societé Air France v. Virtual Dates, Inc. WIPO Case No. D2005-0168, in holding that the domain name <airfrancesucks.com> was confusingly similar to the AIR FRANCE trademark:
“…every case must be assessed on its own merits, and the Panel agrees with the remarks by the Complainant, and which has also been stated in previous decisions under the UDRP, that far from all international customers are familiar with the pejorative nature of the term “sucks”, and that a large proportion of internet users therefore are likely to be confused by “-sucks” domain names. See inter alia, Wachovia Corporation v. Alton Flanders, WIPO Case No. D2003-0596”. The same point was made in Berlitz Investment Corp v. Stefan Tinculesue, WIPO Case No. D2003-0465.
In the present case, the evidence contained in the affidavit of the General Counsel of the Complainant, is that the Complainant sells Red Bull in 142 countries, that its RED BULL trademark is registered in 203 jurisdictions, that it spends large sums of money on advertising worldwide and that it sponsors international sporting events that have wide media coverage and cultivates young athletes in the Middle East. All of the other evidence shows that the Complainant has a worldwide business and that accordingly its customers not only include non-English speakers, but its English-speaking customers are likely to be in a minority.
Accordingly, it is very relevant to consider what a non-English speaker would make of the expressions <betterthanredbull.com> and <betterthenredbull.com>. The Panel’s view is that it is more likely than not that a non-English speaker would have difficulty giving a meaning to either expression, especially the latter, which does not even have a clear meaning in English.
What is abundantly clear, however, is that a non-English speaker would recognize the words “redbull” in the domain names, for it has become a famous brand worldwide: 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. It is almost inconceivable that anyone likely to want to buy, or know more about, Red Bull would not know or be able to recognize the words and symbol associated with the product.
As the Complainant has also argued and as has been endorsed in Red Bull GmbH v. Tony Marinelli WIPO Case No. D2001-0522 and Red Bull GmbH v. Emory Virgil, WIPO Case No. D2005-0381, the RED BULL trademark is inherently distinctive and one of those marks that can be described as “very strong marks”. It would therefore be, for Internet users interested in the product, the most dominant feature of the domain names and would colour their perception as to what the domain names were referring to, as was the case in PepsiCo, Inc v. PEPSI, SRL (a/k/a P/E/P.S.I.) and EMS COMPUTER INDUSTRY ( a/k/a/ EMS), WIPO Case No. D2003-0696, also cited by the Complainant.
Potential customers would, in the view of the Panel and based on the evidence of the Complainant’s General Counsel, instantly recognize the combined expressions in the domain names as being concerned with Red Bull. Indeed, it is probably the only part of the domain names that would be recognized.
Accordingly, the Panel concludes that non-English speaking people looking for Red Bull websites would probably regard the two domain names as official Red Bull domain names as being associated with the Complainant.
The Panel also notes, as an important factor, that the domain names have the potential of attracting traffic on the basis of users entering the term “Red Bull” in search engines that would subsequently lead them to such unauthorized websites for commercial gain.
Finally, it is also well established that in deciding the issue of confusing similarity, the generic top-level domain, in the present case “.com”, is not considered as, by
definition, all domain names must contain such a suffix which is a functional part of all domain names.
For these reasons, the Panel finds that the domain names are confusingly similar to the RED BULL trademarks and that the Complainant has accordingly made out the first of the three elements that it must establish.
B. Rights or Legitimate Interests
Under paragraph 4(a)(ii), the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the domain names.
But by virtue of paragraph 4(c) of the Policy, it is open to a respondent to establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
“(i) before any notice to you [Respondent] 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 [Respondent] (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 [Respondent] 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.”
Thus, if the Respondent proves any of these elements or indeed anything else that shows it has a right or interest in the domain names, the Complainant will have failed to discharge its onus and the complaint will fail.
As a starting point in this analysis, the Panel notes that it is now well established that, as it is put in paragraph 2.1 of the Overview of WIPO Panel Views on Selected UDRP Questions, “…a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such a prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do this, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP”.
Has the Complainant made out a prima facie case?
The Panel, after considering all of the evidence in the Complaint and the exhibits attached to it, finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the domain names.
The Complainant has established that the Respondent was not licensed or authorized to use the trademarks in his domain names, that nobody would legitimately choose the unusual combination of the words “red” and “bull” unless trying to create an association with the Complainant, that the Respondent must have known of the fame of the RED BULL marks when he registered the domain names, that the Respondent had linked the domain names to a website promoting a rival energy drink and that the Respondent was not commonly known by either of the domain names. Those facts are more than adequate to make out the prima facie case.
Has the Respondent rebutted the prima facie case?
To rebut this prima facie case, the Respondent makes several submissions.
The first is that “using a famous name or brand is common practice in advertising, criticism, and voicing one’s opinion regarding a product, just to name a few. Advertisers frequently say things like “Pepsi drinker’s prefer Coke”, “More head room than a Lexus” or what have you. Retailers put signs on their shelves with ads like:
‘compare to Advil.” to promote their store brands.”
In the same vein, the Respondent argues:
“ In closing I want to remind you that it is common practice for famous names to be used in web domain names. Sometimes to promote the thing that is famous, and sometimes to criticize it. It goes with the territory of being famous.”
All that the Respondent has put is correct. However, it does not rebut the prima facie case and does not give rise to a right or legitimate interest in the domain names.
The essential difference is that in the cases suggested by the Respondent, claims by the rival are open for all to see and invite the customer to make a comparison. In the case that arises in the present proceedings, the domain names, because they are confusingly similar to the trademark, attract users looking not for the competing products, but for the trademarked product appropriated for a domain name that suggests an association with the Complainant.
In Monty & Pat Roberts Inc. v. J.Bartell, WIPO Case No. D2000-0300, where the domain name <montyroberts.org> led to a website containing criticisms of the Complainant, Monty Roberts, the panel said:
“….. the right to express one’s views is not the same as the right to use another’s name to identify one’s self as the source of those views. One may be perfectly free to express his or her views about the quality or characteristics of the reporting of the New York Times or Time Magazine. That does not, however, translate into a right to identify one’s self as the New York Times or Time Magazine.”
That illustrates the problem for the Respondent’s argument in the present case; it is legitimate for him to say openly that there it is another product that is better than Red Bull; it is not legitimate for him to identify himself as Red Bull, which he does by taking domain names confusingly similar to Red Bull itself.
The other and greater problem for the Respondent in trying to establish a right or legitimate interest in the domain names in question is that their use is essentially deceptive and as such cannot give rise to a right or legitimate interest. The Respondent has chosen domain names which incorporate the exact words of the RED BULL trademark; they have then been linked to the website “www.russ.killer-buzz.com”.
The Panel is somewhat handicapped in not being able to view the website, as it seems to have been discontinued. The Complainant, however, has at Annex F to the Complaint exhibited some screen shots from the website so we are able to see what was included on the site at the time they were taken. In brief, the website promotes not Red Bull but the energy drink Killer Buzz that is a competitor to Red Bull.
Moreover, the website does not deliver on the promise implicit on the domain names that the websites to which they resolve will make out a case as to why a certain product is better than Red Bull. Nothing is contained on the website other than the promotion of the rival drink. That is essentially a deceptive process and is the complete negation of the legitimacy that the Respondent must establish to rebut the prima facie case against it.
The Respondent’s second argument is that his domain names lead to a criticism site and that under established principles the use of a domain name for criticism must give rise to a right or legitimate interest in the domain names.
Can a criticism site give rise to a right or legitimate interest?
Opinions amongst UDRP panelists are divided on whether a criticism site can give rise to such a right or legitimate interest, as the Respondent claims. The divergence of opinion on this question is set out in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions where it is said:
“ 2.4 Does a respondent using the domain name for a criticism site generate rights and legitimate interests?
This section only concerns sites that practice genuine, non-commercial criticism. There are many UDRP decisions where the respondent argues that the domain name is being used for a free speech purpose, but the panel finds that, in fact, the domain name is being used for commercial gain.
See Wal-Mart Stores, Inc. v. Walsucks and Walmarket Puerto Rico D2000-0477 among others, Transfer.
In the event that a domain name confusingly similar to a trademark is being used for a genuine non-commercial free speech web site, there are two main views. There is also some division between proceedings involving US parties and proceedings involving non-US parties, with few non-US panelists adopting the reasoning in View 2.
View 1: The right to criticize does not extend to registering a domain name that is identical or confusingly similar to the owner’s registered trademark or conveys an association with the mark.
Skattedirektoratet v.Eivind Nag D2000-1314, Transfer
Myer Stores Limited v. Mr. David John Singh D2001-0763, Transfer
Triodos Bank NV v. Ashley Dobbs D2002-0776, Transfer
The Royal Bank of Scotland Group plc, National Westminster Bank plc A/K/A NatWest Bank v. Personal and Pedro Lopez D2003-0166, Transfer
Kirkland & Ellis LLP v. DefaultData.com, American Distribution Systems, Inc. D2004-0136, Transfer
View 2: Irrespective of whether the domain name as such connotes criticism, the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if the use is fair and non-commercial.”
But what is clear from this analysis and from all the decisions on the subject is that even if View 2 is applied, no website will ever give rise to legitimacy unless it is a genuine criticism site and not a commercial website masquerading as a criticism site.
In the present case, it clear that the website to which the Respondent has linked the domain names is not a criticism site, but is one that is entirely commercial. It in fact contains no criticism, but is confined to a bald promotion of a competitor drink and its qualities.
Accordingly, the website establishes not that the Respondent has a right or legitimate interest in the domain names but the opposite.
It is also clear from the evidence and the Panel so finds that the Respondent has not brought himself within any of the provisions of paragraph 4(c) of the Policy and cannot establish a right or legitimate interest in the domain names by that or any other means.
The Respondent has therefore not rebutted the prima facie case against him and the Complainant has accordingly made out the second of the three elements that it must establish.
C. Registered and Used in Bad Faith
The Complainant must prove on the balance of probabilities both that the domain names were registered in bad faith and that they are being used in bad faith: Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
Paragraph 4(b) of the Policy sets out four circumstances, any one of which is evidence of the registration and use of a domain name in bad faith, although other circumstances may also be relied on, as the four circumstances are not exclusive. The four specified circumstances are:
“(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the 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 respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent 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 Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted 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 the respondent’s website or location or of a product or service on the site or location”.
The Panel finds that the Complainant has made out its case under paragraphs 4(b)(iii) and (iv) of the Policy.
With respect to paragraph 4(b)(iii), the Panel finds, first, that the Respondent in all likelihood registered the domain name knowing full well of the existence and fame of the RED BULL trademark, as it is the trademark of one of the most prominent energy drinks in the world. Secondly, it must therefore be inferred that the Respondent’s intention in registering the domain name was to try to divert part of the Complainant’s market for Red Bull to his own advantage by diverting Internet traffic to the Respondent’s own website where the rival energy drink Killer Buzz was being actively promoted. The conclusion must therefore be drawn that the domain names were registered to attract potential users to the Killer Buzz website and to make money from doing so.
It would be difficult, therefore, to contemplate a more obvious case of disrupting a trademark owner’s business than, having got them to the website by a subterfuge, to urge potential customers to buy a rival product from a rival manufacturer. That is clearly what the Respondent has done and what the Panel finds that he intended to do.
Accordingly, the domain names were registered ‘… primarily for the purpose of disrupting the business of a competitor”, namely the Complainant.
With respect to paragraph 4(b)(iv), the Panel finds that the Respondent’s actions also constitute bad faith in both registration and use within the meaning of paragraph 4(b)(iv) of the Policy. The reasons why that element has been made out are as follows.
First, the Respondent has undoubtedly been attempting to attract Internet users to his website within the meaning of paragraph 4(b)(iv). Looking at the screenshots from the website to which the domain names resolve, it is impossible to accept that this was done for any reason other than commercial gain in one form or another.
Secondly, by using the entirety of Complainant’s trademark RED BULL in his domain names, the Respondent created the likelihood of confusion with the trademark.
Thirdly, the confusion likely to be created is confusion with the RED BULL mark about the affiliation of the product being promoted on the Respondent’s website and as to whether it is the Complainant’s product or endorsed by it or is in some way associated with it. Clearly, consumers who are using the disputed domain names have arrived at the website because they are seeking information about Red Bull and its activities. When the website promotes an energy drink as it does, consumers are entitled to believe that it is being promoted under some sort of imprimatur from the Complainant, which it is not.
There is therefore clear scope for confusion as to whether the energy drink being promoted on the website is associated with the Complainant or not.
The Panel finds that these circumstances create confusion with the Complainant’s
trade mark as to the sponsorship, affiliation and endorsement of the Respondent’s site and the product on it and that the Respondent must be taken to have intended this confusion and to have been doing so for commercial gain in one form or another.
The facts therefore come within paragraph 4(b)(iv) of the Policy and constitute bad faith both in registration and use, a conclusion that has often been reached by UDRP Panels on analogous facts; see for example: Identigene, Inc. v. Genetest Laboratories WIPO Case No. D2000-1100; MathForum.co v.Weiguang Huang, WIPO Case No. D2000-0743 and IndyMac Bank v. F.S.B. v. Jim Kato, FA 190366 (Nat. Arb. Forum). In this regard, the comments of the panelist in Identigene, Inc. v. Genetest Laboratories (supra) are apposite:
“ Complainant has alleged and the Panelist finds that Respondent’s use of the domain name at issue to resolve to a website where services are offered to Internet users is likely to confuse the user into believing that Complainant is the source of or is sponsoring the services offered at the site. This constitutes evidence of bad faith registration and use under the Policy, Paragraph 4(b)(iv). InfoSpace.com, Inc. v. Hari Prakash, WIPO Case No. D2000-0076; America Online Inc.v.Cyber Network LLP, WIPO Case No. D2000-0977”.
For these reasons, the Panel finds that the Respondent both registered and used the domain names in bad faith and that the Complainant has therefore made out the third of the three elements that it must prove.
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 names <betterthanredbull.com> and <betterthenredbull.com> be cancelled.
The Honourable Neil Anthony Brown QC
Date: August 14, 2007