WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. Hulmiho Ukolen/Whois protection, this company does not own this domain name s.r.o.
Case No. D2015-2238
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 Hulmiho Ukolen of Helsinki, Finland; Whois protection, this company does not own this domain name s.r.o. of Prague, Czech Republic.
2. The Domain Name and Registrar
The disputed domain name <redbullesports.com> is registered with Hebei Guoji Maoyi (Shanghai) LTD aka HEBEI INTERNATIONAL TRADING (SHANGHAI) CO., LTD dba HebeiDomains.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 9, 2015. On December 9, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 13, 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 14, 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 14, 2015.
On December 14, 2015, the Center transmitted an email to the parties in both English and Finnish regarding the language of the proceeding. On December 15, 2015, the Complainant submitted its request that English be the language of the proceeding. The Responding did not submit its comments within 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 and 4, the Center formally notified the Respondent of the Complaint in English and Finnish, and the proceeding commenced on December 30, 2015. In accordance with the Rules, paragraph 5, the due date for Response was January 19, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 20, 2016.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on February 1, 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 the proprietor of the trademark RED BULL, which has been used since 1987 in Austria and internationally since 1992. The trademark is registered in several jurisdictions covered by, inter alia, the international registration No 961854 RED BULL with priority date of September 27, 2007.
The disputed domain name was registered on May 5, 2015, and resolves to a site featuring pay-per-click (PPC) links related to the Complainant’s business.
5. Parties’ Contentions
The Complainant is the world’s largest producer of energy drinks, sold under the trademark RED BULL. The Complainant’s product is sold in 163 countries and in 2014 it sold over 5.6 billion serving units globally.
The essential part of the Complainant’s marketing activities is sponsorship of sport events. The Complainant has been particularly involved in Formula One sponsorship and has arranged various other sporting events, such as the RED BULL FLUGTAG.
Several UDRP panels have previously considered the trademark RED BULL to be internationally famous.
The disputed domain name incorporates the Complainant’s trademark in its entirety, with the insertion of the letter “e” in between the trademark and the word “sports”. This does not change the overall impression of the disputed domain name being confusingly similar with the Complainant’s trademark.
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by it and the Complainant has not permitted the Respondent to use its trademark in the disputed domain name.
The Respondent must have been aware of the Complainant’s trademark when registering the disputed domain name. The Respondent never replied to the Complainant’s cease and desist letter but keeps using the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Language of the proceedings
According to paragraph 11 of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement unless the Panel decides otherwise.
The language of the Registration Agreement is Finnish, as confirmed by the Registrar.
The Complainant has requested that the language of the proceeding be English. The website at the disputed domain name is in English. Hence the Respondent has sufficient knowledge of English. The Respondent has not rebutted this request or the Complainant’s reasoning and has not made any language request.
The Panel finds that the Respondent apparently can understand English and the Complainant would be unfairly disadvantaged by being forced to translate the Complaint into Finnish. Hence the Panel determines that the language of the proceeding shall be English.
B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires that the Complainant establishes that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark.
As held by several prior UDRP panels, the Complainant’s trademark RED BULL is undoubtedly a well-known trademark for energy drinks all over the world. The disputed domain name incorporates the Complainant’s trademark in its entirety and merely inserts the letter “e” in between the trademark and the word “sports”.
In accordance with paragraph 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademarks, and hence the first element of the Policy has been fulfilled.
C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the Complainant to establish that the Respondent has no rights or legitimate interests to the disputed domain name.
The consensus view among UDRP panels is that once a complainant has made a prima facie showing indicating the absence of the respondent’s rights or legitimate interests in a disputed domain name the burden of production shifts to the respondent to come forward with evidence of such rights or legitimate interests. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270 and paragraph 2.1 of WIPO Overview 2.0.
The Complainant has submitted that it is not affiliated with the Respondent, it has not authorized the Respondent to use the trademark RED BULL or the disputed domain name, and that the Respondent is not commonly known by the disputed domain name. The Respondent has not rebutted these arguments.
The Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. Therefore, the Panel finds that the second element of the Policy is fulfilled.
D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to establish that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy provides that the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
“(i) circumstances indicating that [the respondent has] registered or has acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [the respondent’s] documented out-of-pocket costs directly related to the domain name; or
(ii) [the respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the respondent has] engaged in a pattern of such conduct; or
(iii) [the respondent has] registered the domain name primarily for the purpose of disrupting the business or competitor; or
(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.”
The Panel accepts that the trademark RED BULL is a well-known trademark as held by previous panels. It follows that the Respondent must have been aware of the Complainant’s trademark when registering the disputed domain name.
The Respondent has also combined the Complainant’s trademark with the word “sports”. Considering that the Complainant is particularly active in sponsoring different sporting events, the Panel considers that the Respondent has intended to create an association with the Complainant for the purposes of attracting for commercial gain, Internet users to the Respondent’s website.
Also the fact that the Respondent has not responded to the Complainant’s cease and desist letter is evidence of use and registration of the disputed domain name in bad faith, as held in Nintendo of America, Inc. v. Garrett N. Holland et al, WIPO Case No. D2000-1483.
The use of the disputed domain name to resolve to a PPC site featuring links related to the Complainant’s business constitutes bad faith under paragraph 4(b)(iv) of the Policy.
Based on the above, the Panel finds that the third element of the Policy is fulfilled.
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 <redbullesports.com> be transferred to the Complainant.
Date: February 15, 2016