WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. Private Registrant, A Happy DreamHost Customer / Stephen Warde
Case No. D2015-2154
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 Private Registrant, A Happy DreamHost Customer of Brea, California, United States of America ("United States") / Stephen Warde of Gort, Ireland.
2. The Domain Name and Registrar
The disputed domain name <redbulli.com> is registered with New Dream Network, LLC dba DreamHost.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 26, 2015. On November 26, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 4, 2015, 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 December 7, 2015 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 December 7, 2015.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 8, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 28, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 29, 2015.
The Center appointed George R. F. Souter as the sole panelist in this matter on January 6, 2016. 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 an Austrian company which, since 1992, has sold energy drinks under its RED BULL trademark internationally. It currently trades under its RED BULL trademark in 163 countries, and, in 2014, sold 5.6 billion "serving units" globally. The Complainant spends considerable sums in advertising its RED BULL products, spending EUR 53.8 million in world-wide media marketing in 2014. Details of its widespread sports sponsorship activities have been supplied to the Panel. Previous UDRP panels, e.g. in Red Bull GmbH v. Eric Heyne, WIPO Case No. D2015-0578, and earlier cases have recognized the Complainant's RED BULL trademark as being well-known.
Details of the Complainant's International Registration No 961854 of its RED BULL trademark, registered on March 19, 2008 and other registrations, have been supplied to the Panel.
The disputed domain name was registered on June 6, 2015.
5. Parties' Contentions
The Complainant alleges that the disputed domain name is confusingly similar to its RED BULL trademark, wholly containing the RED BULL trademark and differing from it only be the addition of a terminal letter "i".
The Complainant states that it has not licensed or otherwise permitted the Respondent to use any of its trademarks or any variations thereof, or to register or use any domain name incorporating any of these trademarks or any variations thereof. Further, the Complainant alleges that, to the best of its knowledge, the Respondent is not commonly known by the disputed domain name, and that the Respondent has no legitimate reason for registering the disputed domain name.
The Complainant alleges that the disputed domain name has been registered in bad faith, and is being used in bad faith by operating a commercial website under the disputed domain name, containing articles with general information on motorcycle equipment, promoting related third party products and services and displaying a picture of the Complainant's team's motorcycle driver.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant or cancelled:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
It is well established in decisions under the UDRP that generic Top-Level Domains ("gTLD") (e.g. ".com", ".info", ".net", ".org") may typically be considered irrelevant in assessing confusing similarity between a trademark and a disputed domain name. The Panel agrees with this view and considers the gTLD ".com" to be irrelevant in the present case.
The Panel is persuaded that the Complainant has rights in RED BULL and the Complainant's RED BULL trademark is well-known.
It has been well-established in prior decisions under the UDRP that a domain name which wholly contains a complainant's well-known trademark together with an inconsequential addition is to be regarded as confusingly similar to said trademark. In the circumstances of the present case, the Panel finds that the mere addition of a terminal letter "i" to the trademark RED BULL, which is the overwhelmingly dominant portion of the disputed domain name, is inconsequential, and may even lead to confusion through typographical error, typically referred to as typosquatting. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant's RED BULL trademark, and that the Complainant has satisfied the test of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
It is the consensus view of UDRP panels, with which the present Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name.
The Panel regards the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity afforded to him in these proceedings to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case.
Furthermore, noting the Panel's findings as to the bad faith use of the website, the Panel finds no other basis for any Respondent rights or legitimate interests in the disputed domain name.
Accordingly, 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 of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name, may lead, in appropriate circumstances, to a finding that a disputed domain name was registered in bad faith. The Panel regards the circumstances of the present case, in which the Complainant's trademark is well-known and was incorporated in its entirety, with a mere inconsequential addition, as sufficient for the Panel to find that the disputed domain name was registered in bad faith.
In connection with use in bad faith, the Complainant has drawn the Panel's attention to the decision in Arthur Guinness Son & Co (Dublin) Limited v. Dejan Macesic, WIPO Case No. D2000-1698. In that case, the panel, having decided that the disputed domain name had been registered in bad faith, concluded that it was being used in bad faith "because it is being used intentionally to mislead Internet users into visiting the respondent's website in the belief that they are visiting the Complainant's website", a view with which the Panel in the present case agrees. The Panel, in the special circumstances of the present case, believes that the overwhelming probability is that the commercial use of the website operated under the disputed domain name in conjunction with the Respondent's typosquatting on the Complainant's trademark, deliberately misleads Internet users into visiting the Respondent's website in the belief that they are visiting the Complainant's website, especially given that the website is displaying a picture of the Complainant's team's motorcycle driver and promoting and linking to unrelated, third-party products. Accordingly, the Panel finds that the disputed domain name in this case is being used in bad faith, and that the Complainant has satisfied the requirements of 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 <redbulli.com> be cancelled.
George R. F. Souter
Date: January 20, 2016