WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. email@example.com
Case No. D2013-0806
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 firstname.lastname@example.org of Destin, Florida, United States of America (“United States”).
2. The Domain Names and Registrar
The disputed domain names <redbullprotein.com> and <redbullprotein.net> are registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 7, 2013. On May 8, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On May 8, 2013, 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 May 14, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was June 3, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 4, 2013.
The Center appointed David Stone as the sole panelist in this matter on June 6, 2013. 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 energy drinks. It is the producer of the Red Bull energy drink, which was first sold in Austria in 1987 and has been sold internationally since 1992.
The Complainant is the owner of multiple trade mark applications and registrations consisting of or containing the words “red bull”. These applications and registrations cover an extensive range of goods and services and span all 45 trade mark classes of the Nice Classification, including in the United States, where the Respondent is based.
The Complainant is also the registrant of a large number of domain names containing “red bull”, both under generic and country-code top level domains. The Complainant operates its main website under the domain name <redbull.com>.
The disputed domain names <redbullprotein.com> and <redbullprotein.net> were registered by the Respondent on January 23, 2013. The websites under the disputed domain names are “jump pages” that direct Internet users to another website at “www.womens-protein.com”. On this website, the Respondent displays its own online business, including protein supplements, fitness equipment and personal consultations.
5. Parties’ Contentions
The Complainant alleges that the disputed domain names are identical or confusingly similar to its registered trade marks RED BULL because they incorporate the Complainant’s well-known mark in its entirety with the addition of the descriptive term “protein”. According to the Complainant, this additional descriptive term does not change the overall impression of the designations as being domain names connected to the Complainant and does not reduce the likelihood of confusion.
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain names, and that the disputed domain names are so identical to the Complainant’s RED BULL trade mark that the Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the disputed domain names.
The Complainant also contends that the Respondent is not commonly known by the name or term “red bull”. Moreover, it is not affiliated with the Complainant, nor authorised or licensed to use the RED BULL trade mark or to seek registration of any domain name incorporating that mark.
The Complainant submits that the disputed domain names were registered and are being used in bad faith. The Complainant contends that the Respondent had the Complainant’s trade mark and company name in mind when registering the disputed domain names.
The Complainant requests that the disputed domain names be cancelled.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove each and all of the following three elements in order to prevail in these proceedings:
(i) the disputed domain names are identical or confusingly similar to a trade mark 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.
A. Identical or Confusingly Similar
The Complainant provided evidence that it has prior registered rights in the mark RED BULL around the world, including in the United States where the Respondent is based. From the evidence supplied, the Panel finds that RED BULL is a well-known mark, at least in relation to energy drinks. Several other UDRP panels have made similar findings (Red Bull GmbH v. PREGIO Co., Ltd., WIPO Case No. D2006-0909; Red Bull GmbH v. Web Wax Designer, WIPO Case No. D2006-0746).
The disputed domain names incorporate the Complainant’s trade mark in its entirety. The addition of the suffix “protein” does not impact on the overall impression of the words “red bull”. Previous UDRP panels have held that adding common terms (as is the case here) to a registered trade mark and registering the result as a domain name does not mitigate the confusing similarity between the domain name and the mark (see Hoffmann-La Roche Inc. v. Wei-Chun Hsia, WIPO Case No. D2008-0923; Deutsche Telekom AG v. Gems N Pearls International Holding, WIPO Case No. D2005-0820).
Accordingly, the Panel finds that the Complainant has established the first element under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Guidance regarding establishing rights or legitimate interests is provided in paragraph 4(c) of the Policy.
Three non-exclusive circumstances are identified that would establish rights or legitimate interests:
(i) bona fide prior use of the disputed domain names;
(ii) common association with the disputed domain names; or
(iii) legitimate noncommercial or fair use of the disputed domain names.
The Complainant has made a prima facie case that none of these circumstances apply. The Respondent did not exercise its right to respond substantively in these proceedings. Thus, the Respondent has failed to rebut the prima facie case made by the Complainant or advance any other arguments supporting its rights or legitimate interests in the disputed domain names.
Consequently, the Panel finds that the Complainant has established the second element under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides guidance regarding establishing bad faith.
Four non-exhaustive circumstances are identified where a respondent’s intention in registering or using a domain name may be evidence of bad faith registration and use. These intentions may be summarised as follows:
(i) to sell the domain name to the rights-holder at a profit;
(ii) to prevent the rights-holder from registering a domain name;
(iii) to disrupt the business of a competitor; or
(iv) to divert Internet traffic for commercial gain.
Given the fame of the RED BULL mark for energy drinks, including in the United States where the Respondent resides, the Panel finds that in all likelihood the Respondent must have been aware of the Complainant’s trade marks at the time it registered the disputed domain names. The Panel therefore finds that the Respondent intentionally attempted to attract, for commercial gain, Internet users to its website (and hence divert Internet traffic) by creating a likelihood of confusion with the Complainant’s marks.
Accordingly, the Panel finds that the Complainant has established the third element under paragraph 4(a)(iii) of the Policy.
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 names <redbullprotein.com> and <redbullprotein.net> be cancelled as requested by the Complainant.
Date: June 12, 2013