The Complainant is Red Bull GmbH of Austria, represented by Drzewiecki, Tomaszek & Wspólnicy Sp. Jawna, Poland.
The Respondent is Jack Weintraub / INET Live TV of United States of America.
The disputed domain names <redbullextreme.com>, <redbullextreme.mobi>, <redbullextreme.net>, <redbullxtreme.mobi> and <redbullxtreme.net> are registered with Tucows Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 2, 2009. On October 5, 2009, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the disputed domain names. On the same day, Tucows Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 6, 2009 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 October 16, 2009. 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 October 20, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response (after the case was re-instituted) was November 19, 2009.
On November 3, 2009, the Complainant sent an email to the Center requesting the suspension of the proceedings. On the same day, the Center sent the Notification of Suspension to the parties and the concerned registrar. On November 13, 2009, the Complainant requested by email that the proceedings be reinstituted. The Center confirmed the same on the same day. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 20, 2009.
The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on November 25, 2009. 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.
The Complainant is the producer of the well-known Red Bull energy drink.
The Complainant holds trademark registrations in different countries consisting of or containing the terms RED BULL.
The disputed domain names <redbullextreme.com>, <redbullextreme.mobi>, <redbullextreme.net>, <redbullxtreme.mobi> and <redbullxtreme.net>, were registered on May 1, 2009.
The Complainant contends the following:
That the Complainant is the largest worldwide producer of energy drinks, particularly, the producer of the famous RED BULL energy drink which was fist sold in Austria in 1987 and internationally since 1994. Moreover, the Complainant contends that the Red Bull energy drink is sold in 154 countries and that in 2008 it has sold 3.9 billion units.
Furthermore, the Complainant contends that it has promoted its trademark RED BULL by means of substantial international advertising for years. Sponsorship of sports events is an essential part of the Complainant's marketing activities, as shown by the Complainant's principal website at “www.redbull.com” and Affidavit of the General Counsel of the Complainant.
Moreover, the Complainant contends that it holds a large number of trademark registrations in different countries, including the United States, consisting of or containing the terms RED BULL.
The Complainant also contends that the disputed domain names <redbullextreme.com>, <redbullextreme.mobi>, <redbullextreme.net>, <redbullxtreme.mobi> and <redbullxtreme.net>, incorporate in its entirety its well-known trademark RED BULL. The Complainant also contends that the mere addition of the generic terms “extreme” or “xtreme” does not change the overall impression of likelihood of confusion with the Complainant's trademark RED BULL, being RED BULL the most distinctive element in the disputed domain names.
On the other hand, the Complainant contends that it has not licensed or otherwise permitted the Respondent to use any of its trademarks or any variations thereof, nor to register or use any domain name incorporating any of those marks.
Furthermore, the Complainant contends that none of the circumstances listed in paragraph 4(c) of the Policy, possibly demonstrating rights or legitimate interests, are given in the case and therefore, it concludes that the Respondent does not have any right or legitimate interest in connection with the disputed domain names.
The Complainant also contends that the disputed domain names <redbullextreme.com>, <redbullextreme.mobi>, <redbullextreme.net>, <redbullxtreme.mobi> and <redbullxtreme.net> were registered and are being used in bad faith.
In that connection, the Complainant contends that given the fame and reputation of the RED BULL trademark and the Complainant's activities all over the world, it is inconceivable that the Respondent was unaware of the Complainant and its trademark RED BULL when registering the disputed domain names.
Furthermore, the Complainant contends that by using the disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with the Complainant's trademark RED BULL as to the source, sponsorship, affiliation, or endorsement of the Respondent's websites.
For all the above-mentioned the Complainant requests that the disputed domain names be cancelled.
The Respondent did not reply to the Complainant's contentions.
For the Complaint to succeed in a UDRP proceeding, under paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The disputed 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 disputed domain names; and
(iii) The disputed domain names have been registered and are being used in bad faith.
In accordance with paragraph 15(a) of the Rules, the Panel shall 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 Complainant has filed relevant evidence showing that it holds several trademark registrations consisting of or containing the terms RED BULL.
The disputed domain names <redbullextreme.com>, <redbullextreme.mobi>, <redbullextreme.net>, <redbullxtreme.mobi> and <redbullxtreme.net>, incorporate the trademark RED BULL in its entirety. The Panel finds that the term RED BULL is the most distinctive term in the disputed domain names (mot vedette).
The mere addition of the terms “extreme” or “xtreme” does not avoid the risk of confusion with the Complainant's trademark RED BULL. In the circumstances of the case, these terms may also evoke different “extreme” sports being sponsored by the Complainant.
In view of the foregoing, the Panel finds that the disputed domain names are confusingly similar to a trademark in which the Complainant has rights, and therefore, the Complainant has succeeded on this first element under the Policy.
According to paragraph 4(a)(ii), the second element that the Complainant must prove is that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Policy in its paragraph 4(c) sets out various ways in which a respondent may demonstrate rights or legitimate interests in a domain name.
Although the Policy states that the Complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative, i.e., that a respondent has no rights or legitimate interests in respect of a domain name. It has therefore become generally accepted under the Policy that, once a complainant has presented a clear prima facie showing of a respondent's lack of rights or legitimate interests in a domain name, the burden of submitting evidence therefore shifts to the respondent. The respondent must then by concrete evidence demonstrate its rights or legitimate interests in the domain name in order to refute the prima facie case.
The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests and so the burden of proof has effectively been shifted to the Respondent, who did not reply to the Complainant's contentions and, therefore, has not made such showing.
There is no evidence showing that the Respondent is commonly known as or identified by Red Bull, Red Bull Extreme or Red Bull Xtreme. Furthermore, there is no evidence showing that the Respondent operates a business or any other organization under the disputed domain names.
For these reasons, and in the absence of a plausible explanation from the Respondent in connection with its rights or legitimate interests, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names.
According to paragraph 4(a)(iii) of the Policy, the third element that a complainant must prove is that the domain name has been registered and is being used in bad faith.
The Policy in paragraph 4(b) sets out various circumstances which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith.
The Complainant has identified itself as the largest worldwide producer of energy drinks, particularly, the producer of the well-known RED BULL energy drink, with presence in 154 countries.
Moreover, the Complainant has proved to the Panel's satisfaction that it owns several trademark registrations consisting of or containing the terms RED BULL.
Particularly in the United States, where according to the WhoIs database the Respondent is domiciled, the Complainant owns registrations for RED BULL, Reg. Nos. 3086964, 3092197, and 883431, registered on May 2, 2006, May 16, 2006 and September 27, 2007, respectively.
The Respondent registered all five disputed domain names <redbullextreme.com>, <redbullextreme.mobi>, <redbullextreme.net>, <redbullxtreme.mobi> and <redbullxtreme.net> on March 1, 2009.
In view of the foregoing, considering that the Complainant has proved to the Panel's satisfaction the importance and worldwide recognition of its trademark RED BULL, and in the absence of a rebuttal from the Respondent, the Panel finds that the Respondent in all likelihood was aware or must have been aware of the trademark RED BULL before registering the disputed domain names, which evidences bad faith registration.
Moreover, as stated by the Complainant and on the basis of the printouts of the websites to which the disputed domain names resolve, and in the absence of a rebuttal by the Respondent, the Panel finds that by using the disputed domain name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line locations, by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement.
For these reasons, the Panel finds that the Respondent both registered and is using the disputed domain names in bad faith and that the Complainant has therefore made out the third element of the case.
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, <redbullextreme.com>, <redbullextreme.mobi>, <redbullextreme.net>, <redbullxtreme.mobi> and <redbullxtreme.net> be cancelled.
Miguel B. O'Farrell
Sole Panelist
Dated: December 7, 2009