WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. Privacy Protect.org / EGE EKİCİ
Case No. D2013-1477
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 Privacy Protect.org of Queensland, Australia / EGE EKİCİ of Kandahar, Tahran, Afghanistan.
2. The Domain Name and Registrar
The disputed domain name <redbullescort.net> is registered with FBS Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 21, 2013. On August 21, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 23, 2013, 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 26, 2013 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 27, 2013.
On August 26, 2013, the Center transmitted an email to the parties in both Turkish and English language regarding the language of the proceeding. On August 27, 2013, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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 September 3, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was September 23, 2013. Two informal email communications were received from the Respondent on September 3 and October 4, 2013.
The Center appointed Kaya Köklü as the sole panelist in this matter on October 4, 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.
On October 24, 2013, in response to the Panel Order No. 1 sent to the Parties on October 14, 2013, the Complainant informed the Center that the Parties did not reach an amicable solution regarding their domain name dispute and requested the reinstitution of the administrative proceedings.
4. Factual Background
The Complainant is the producer of the widely known RED BULL energy drink. The first RED BULL energy drink was sold in Austria in the year 1987, followed by an international roll-out in 1992. The RED BULL energy drink is currently sold in over 150 countries, including Australia (since 1999), Turkey (since 1998) and Afghanistan (since 2003).
The RED BULL marks are protected in more than 200 jurisdictions worldwide. The first trademark registrations date back to the 1980’s. The Complainant claims trademark protection for all 45 trademark classes.
The Complainant operates its main website at “www.redbull.com”.
The disputed domain name was created on March 15, 2012.
According to the current record, the Respondent appears to be in individual from Kandahar and Tahran in Afghanistan.
As evidenced by the Complainant, the disputed domain name was used as a so-called “jump page”, which automatically directs visitors to the website linked to the domain name <dalmin.com>, a pornographic website offering various adult services. At the time of the Decision, the disputed domain name was not active anymore.
5. Parties’ Contentions
The Complainant requests the cancellation of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to the Complainant’s RED BULL trademarks as it fully incorporates the Complainant’s firm name and trademark. The Complainant argues that “the additional word “escort” 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”.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant states that the Complainant has never granted a license or any other permission to the Respondent to use its RED BULL trademark. The Complainant asserts that the Respondent has never used and does not intend to use the RED BULL trademark in connection with a bona fide offering of goods and services. It is further alleged that the Respondent has not been commonly known by the disputed domain name.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant believes that due to the wide recognition of the RED BULL trademark, the Respondent must have known the Complainant and its RED BULL trademarks when registering the disputed domain name.
The Respondent did not formally reply to the Complainant’s contentions.
The Center only received two informal and short email communications in Turkish language on September 3 and October 4, 2013. Both emails were sent from an email account identified as “…@hotmail.com”, without revealing any signature or contact details.
In its first email communication, the sender very briefly raised the question as to what the administrative procedure is all about.
In its second email communication, the sender indicated in a colloquial way that it has no interest in the administrative proceedings and the disputed domain name anymore.
A particular request concerning the remedies in these administrative proceedings has not been filed, neither by the Respondent nor by the sender of the above referred email communications.
6. Discussion and Findings
To begin with, the Panel determines in accordance with the Complainant’s request and the Rules, paragraph 11(a), that the language of these administrative proceedings shall be the English language. Although the language of the Registration Agreement is the Turkish language, the Panel finds that it would be inappropriate, given the circumstances of this case, to conduct the proceedings in Turkish and request a Turkish translation of the Complaint while the Respondent has failed to raise any objection or even to formally respond to the Complaint or respond to the Center’s communication with regard to the language of the proceedings, even though communicated in Turkish and in English. It is not even certain whether the Respondent sufficiently understands the Turkish language as the contact information revealed by the Registrar indicates that the Respondent is a resident of Afghanistan. All in all, the Panel is convinced that the Respondent will not be prejudiced by a Decision being rendered in English, as the Respondent is apparently capable to read, write and understand the English language, in particular as it was apparently well able to conclude an English registration contract with a privacy service located in Australia.
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 Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to the trademark 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 Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may as appropriate accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
Finally, it is noted that the Panel has taken note of the WIPO Overview of Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) and, where appropriate, will decide consistent with the WIPO Overview 2.0.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the RED BULL trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding the mark RED BULL. As demonstrated in the Complaint, the Complainant is the owner of a large number of word and figurative RED BULL trademarks, not only in Australia, Turkey and Afghanistan, but also in more than 150 other jurisdictions.
Although not identical, the disputed domain name fully incorporates the Complainant’s RED BULL trademark.
The disputed domain name differs from the RED BULL trademark only by the addition of the generic term “escort”. In the Panel’s view, the additional word “escort” does not negate the confusing similarity between the Complainant’s trademark and the disputed domain name. The Panel finds that the incorporation of the term “escort” does not create a new distinctiveness separate from the Complainant’s RED BULL trademark. On the contrary, the full inclusion of the Complainant’s trademark in combination with the generic term “escort” even enhances the false impression that the website linked to the disputed domain name is somehow officially related to the Complainant.
The Panel concludes that the disputed domain name is likely to confuse Internet users in their believing that the disputed domain name is affiliated or endorsed by the Complainant or that the use of the disputed domain name is at least authorized by the Complainant.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Panel further finds that the Respondent has not demonstrated any rights or legitimate interests in the disputed domain name.
While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements in paragraph 4(a)(ii) of the Policy, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement by providing uncontested prima facie evidence that the Respondent has no trademark, valid license or any similar right to use the Complainant’s RED BULL trademark in the disputed domain name.
The Panel further finds that the Respondent has failed to file any evidence or convincing argument to demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
The Panel additionally finds that the Respondent is not commonly known by the terms “redbull” and “escort” or any other combination thereof.
Furthermore, the Panel is prepared to find that the Respondent is not using the disputed domain name in a bona fide manner. The Panel is convinced that the Respondent must have been aware of the Complainant’s registered trademark, and that the Respondent has deliberately used the RED BULL trademark in the disputed domain name in order to divert Internet users seeking information on the Complainant to the Respondent’s adult content website for the sole purpose of monetary gain. The Panel believes that this does not constitute a bona fide offering of services under the Policy.
Based on the findings above, the Panel believes that in the present case the Complainant has made a prima facie case and the evidence available in the case file does not provide a basis for the Panel to find any rights or legitimate interests of the Respondent.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith.
First, the Panel believes that the Respondent must have been well aware of the RED BULL trademark when it registered the disputed domain name in March 2012. At the date of registration, the RED BULL trademark was already established and known worldwide, including in Australia, Turkey and Afghanistan, where the Respondent appears to be located.
The Panel rather believes that the Respondent has registered and used the disputed domain name in bad faith by attempting to trade on the goodwill and reputation of the Complainant’s trademark. The Panel shares the Complainant’s view that using the disputed domain name as a “jump page” to direct mislead customers to a pornographic adult page constitutes a strong indication of bad faith registration and use.
The Panel is convinced that the Respondent’s main purpose is to create a likelihood of confusion among customers and/or to tarnish the Complainant’s RED BULL trademark for commercial gain or any other illegitimate benefit.
The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, 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 name <redbullescort.net> be cancelled.
Date: October 27, 2013