WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. Registration Private, Domains By Proxy, LLC / Lisa Vaughn, KALOKA LLC
Case No. D2014-0768
1. The Parties
Complainant is Red Bull GmbH of Fuschl am See, Austria, represented by Drzewiecki, Tomaszek & Wspólnicy Spólka Komandytowa, Poland.
Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States of America (the "USA") / Lisa Vaughn, KALOKA LLC of Gardenerville, Nevada, USA.
2. The Domain Name and Registrar
The disputed domain name <redbullstocks.com> is 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 9, 2014. On May 9, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 13, 2014, 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 Complainant on May 15, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on May 19, 2014.
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 Respondent of the Complaint, and the proceedings commenced on May 26, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was June 15, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on June 16, 2014.
The Center appointed Roberto Bianchi as the sole panelist in this matter on June 19, 2014. 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
Complainant is the producer of the famous Red Bull energy drink, which was ﬁrst sold in Austria in 1987 and internationally since 1992. Currently, the Red Bull energy drink is sold in 159 countries. In 2012, Complainant sold over 5.2 billion serving units of this energy drink globally.
Complainant and its subsidiaries hold national and international trademark registrations or applications consisting of or containing the mark RED BULL in Austria and further 206 jurisdictions worldwide,,inter alia, IR 961854 RED BULL, with priority date March 19, 2008.
Complainant is the registrant of numerous domain names containing the RED BULL mark.
The disputed domain name was registered on February 1, 2010.
5. Parties' Contentions
In its Complaint, Complainant contends as follows:
The disputed domain name is identical or confusingly similar to trademarks in which Complainant has rights. Complainant is the owner of multiple registrations and applications of trademarks consisting of or containing the famous RED BULL mark, covering an extensive range of goods and services and span all international classes. Complainant has run its business under the name RED BULL in Austria since 1987 and internationally since 1992. As UDRP panels have already stated in various cases, Complainant's trademark is famous, as it has a very strong reputation and is widely known all over the world.
Although "red" and "bull" are both ordinary words, they form a distinctive combination. The disputed domain name not only contains Complainant's well-known RED BULL marks but on the website under the domain name the deformed RED BULL mark is provided as well.
Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks or any variations thereof, or to register or use any domain name incorporating any of those marks or any variations thereof. A combination of the words "red" and "bull" is purely fanciful. Therefore, nobody would legitimately choose this combination or any variation thereof, unless seeking to create an association to Complainant.
Respondent is not commonly known by the disputed domain name or by the terms "redbull" or "redbullstocks".
Based on the fame and reputation of the RED BULL mark and the activities of the Complainant all over the world, it can be concluded that Respondent purposefully created a domain name, which consists of a variation of Complainant's well-known mark, to create the misleading impression of being in some way associated with Complainant. Respondent was and is quite obviously trying to exploit the fame and reputation of Complainant's trademarks. Respondent's possible purpose was to bait consumers and switch them to other goods.
Respondent is making illegitimate use of the disputed domain name with intent to derive commercial advantage from its registration and prevents the trademark holder from exercising its rights to the trademark and managing its presence in the Internet.
The disputed domain name was registered and is being used in bad faith. The trademark RED BULL is one of the best known trademarks in the world. Respondent must have been aware of this fact when it deliberately registered the disputed domain name. Respondent's obvious intent was to misleadingly divert consumers to its website, causing confusion among them in the way of creating the impression of relation to, or sponsorship or endorsement, by Complainant. It is apparent that the intent of Respondent was to exploit the reputation of Complainant and the RED BULL trademarks. Both Respondent's registration and use of the disputed domain name were intentional to attract Internet users to the website. The disputed domain name appears designed to attract Internet users who are looking for Complainant's products and business activities. It appears to be causing confusion with Complainant's marks and websites, and to disrupt Complainant's business by diverting consumers away from Complainant's websites.
Respondent is seated in the USA where the RED BULL trademarks are widely known.
According to the statement of Respondent presented on the website "www.redbullstocks.com", Respondent provides information about publicly traded companies. Respondent is presenting the deformed RED BULL trademark on the website under the disputed domain name. Such activity is creating the likelihood between its activity and the activity of Complainant. Respondent, based on the fame and the value of RED BULL brand, promotes and warrants the quality of Respondent's business.
Respondent registered the disputed domain name, which is confusingly similar to Complainant's mark, in an attempt to disrupt Complainant's business and to attract, for commercial gain, Internet users to Respondent's website, by creating a likelihood of confusion with Complainants' mark as to the source, sponsorship, afﬁliation, or endorsement of Respondent's website.
Given Complainant's numerous trademark registrations for, and its wide reputation in, the word RED BULL, it is obvious that Respondent was well aware of Complainant's trademarks and their reputation.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Under the Policy, paragraph 4(a), a complainant must make out its case that:
(i) the domain name is 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 name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
By submitting a printout of its international trademark registration (see section 4 above), Complainant has shown that it owns trademark rights in the RED BULL mark.
The Panel notes that the disputed domain name consists of the RED BULL mark in its entirety, except that in the disputed domain name the space between the terms "red" and "bull" does not appear. Previous UDRP panels have found that the lack of a space has no consequence. See for instance Jack Wolfskin Ausrüstung für Draussen GmbH & Co. KGaA v. lin feifang, WIPO Case No. D2012-1042 ("The disputed domain name incorporates the trademark JACK WOLFSKIN entirely. The lack of a space between the words "Jack" and "Wolfskin" is insignificant."); see also Western Union Holdings, Inc. v. Manuel Rodriguez, WIPO Case No. D2006-0850 ("The Complainant's mark is incorporated entirely and exactly in the disputed domain name (except for the lack of a space between "western" and "union", which is an immaterial difference for the purpose of the Policy).")
Nor can the addition of the generic term "stocks" and the generic Top-Level Domain ("gTLD") suffix ".com" avoid a finding of confusing similarity of the disputed domain name to Complainant's mark. It is well established that the mere addition of a generic term is inapt to distinguish the domain name in issue from the mark. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 1.9 ("The addition of merely generic, descriptive, or geographical wording to a trademark in a domain name would normally be insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP. Panels have usually found the incorporated trademark to constitute the dominant or principal component of the domain name.") It is also well established that the addition in a domain name of a gTLD to a mark does nothing to distinguish the domain name from the mark.
Thus, the Panel is satisfied that the disputed domain name is confusingly similar to Complainant's RED BULL mark.
B. Rights or Legitimate Interests
Complainant alleges that it has not licensed or otherwise permitted Respondent to use any of its trademarks in any domain name. Since the combination of the words "red" and "bull" is purely fanciful, nobody would legitimately choose this combination unless it is seeking to create an association to Complainant. Complainant also alleges that Respondent is not commonly known by the disputed domain name or by the terms "redbull" or "redbullstocks". Further, Complainant contends that Respondent purposefully created the disputed domain name consisting of a variation of Complainant's well-known mark to create the misleading impression of being in some way associated with Complainant. Respondent was and is quite obviously trying to exploit the fame and reputation of Complainant's trademarks, to bait consumers and switch them to other goods. Complainant concludes that Respondent is making illegitimate use of the disputed domain name with intent to derive commercial advantage from its registration and to prevent the trademark holder from exercising its rights to the trademark and managing its presence in the Internet.
In the opinion of the Panel, Complainant's contentions and evidence, taken together, are apt to constitute a prima facie case that Respondent lacks any rights or legitimate interests in the disputed domain name. In particular, Complainant shows that Respondent is using Complainant's mark RED BULL on the "www.redbullstocks.com" website together with a mixed logo consisting of the design words "red bull stocks" plus a reddish bull, in what appears to be an attempt to attract Internet users, presumably searching for Complainant, to Respondent's website. In this regard, the Panel notes that the printout resulting from the lookup visit to the website at the disputed domain name conducted on May 26, 2014 by the Center confirms that Complainant's mark was used as contended by Complainant.
With regard to the fact that Respondent's website contains business news and some stocks quotes, the Panel is aware that there might be some logic in using the term "bull" and/or the image of a bull descriptively, in association with the term "stocks" or stock quote. However, the Panel was not presented with any explanation of Respondent's use of the distinctive RED BULL mark in the disputed domain name and on the website at the disputed domain name. In the opinion of the Panel, such use is neither a bona fide offering, nor a legitimate noncommercial or fair use.
In these circumstances, the Panel concludes that Respondent lacks any rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Complainant has shown that it began using and registered its RED BULL much prior to Respondent's registration of the disputed domain name. The Panel also recognizes that as a result of Complainant's large marketing efforts, advertising and investments, the RED BULL mark, as previous UDRP panels have found is well known. See for instance Red Bull GmbH, Red Bull AG v. ec aka 3.taiwan, WIPO Case No. D2013-1250 ("The mark "RED BULL" is so well known that the Panel agrees with the Complainant that nobody would legitimately chose the combination <redbull-oil.com> or any variation thereof, unless seeking to create an association to Complainant".); see also Red Bull GmbH v. Affiliate Master, WIPO Case No. D2013-0804 ("Given the established well-known identity of the RED BULL trade mark for energy drinks, the Panel finds that in all likelihood the Respondent's would have been aware of the Complainant's trade mark at the time the disputed domain name was registered."). Therefore the Panel concludes that Respondent knew of and had Complainant's RED BULL mark in mind when it registered the disputed domain name. The Panel believes that in the circumstances of this case the registration of the disputed domain name was in bad faith.
In the opinion of the Panel, by using the disputed domain name for the "www.redbullstocks.com" website as described above, if not directly attempting to impersonate Complainant, Respondent at least is creating the impression amongst Internet users presumably looking for Complainant or for information on Complainant's stocks that the website belongs to or is run by Complainant. This means that Respondent intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant's RED BULL mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on Respondent's website or location, which is a circumstance of bad faith registration and use of the disputed domain name pursuant to Policy paragraph 4(b)(iv).
The Panel thus finds that the third element of the Policy is met.
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 <redbullstocks.com> be cancelled.
Date: July 2, 2014