WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. Above.com Domain Privacy / Shu Lin
Case No. D2016-1121
1. The Parties
Complainant is Red Bull GmbH of Fuschl am See, Austria, represented by Drzewiecki, Tomaszek & Wspólnicy Spólka Komandytowa, Poland.
Respondent is Above.com Domain Privacy of Beaumaris, Victoria, Australia / Shu Lin of Dalian, China.
2. The Domain Name and Registrar
The disputed domain name <redbulljobs.com> is registered with Above.com, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 3, 2016. On June 3, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 7, 2016, 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 June 7, 2016 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 June 8, 2016.
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 Respondent of the Complaint, and the proceedings commenced on June 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 5, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 6, 2016.
The Center appointed R. Eric Gaum as the sole panelist in this matter on July 13, 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
Complainant is the producer of the 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 171 countries and its sales volume has grown from 113 million serving units in 1994 to over 5.9 billion worldwide in 2015.
Since its launch, Complainant’s marketplace penetration has been focused on TV, cinema and radio. In 2008 Red Bull spent over EUR 218.1 million worldwide on media marketing and over EUR 1.3 billion on overall marketing. In 2015, the media marketing investment increased to EUR 627.4 million with over EUR 2 billion spent on overall marketing.
Complainant has also acquired a reputation in the media sector and as the organizer of sport, music, fashion and cultural events. Red Bull has been involved in many prestigious international and national events. Red Bull organizes a huge amount of sport and cultural events annually. In 2015 alone Red Bull organized 1,049 events in 84 different countries with over 235,000 participants.
Complainant’s involvement in sports, business, arts, and other events has contributed to make the mark RED BULL well-known throughout the world. Currently Red Bull has more than 45.4 million fans on Facebook. In 2016, Complainant’s channel on YouTube reached a cumulative total of over 5 million subscribers. Complainant’s videos have received more than 380 million views on YouTube in 2015, with a lifetime total of 1.3 billion as of December 2015.
Complainant is the registrant of a large number of domain names (350) containing the RED BULL mark, both under generic and country code Top Level Domains (“TLDs”). Complainant’s main website “www.redbull.com” contains information on the RED BULL energy drink, sport activities, video records of sport events sponsored by Red Bull GmbH and links to other of Complainant websites, all of which regard marketing activities in relation to the trademark RED BULL. Red Bull’s websites received approximately 550 million page views in 2015. This figure takes into account Red Bull’s local country and events websites.
Respondent registered the disputed domain name <redbulljobs.com> on January 10, 2008. According to the evidence submitted by Complainant, the disputed domain name redirects to a website which appears to be used as part of a phishing scheme.
5. Parties’ Contentions
Complainant is the owner of multiple registrations and applications for trademarks consisting of or containing the RED BULL mark and covering an extensive range of goods and services spanning all 45 trademark classes. Complainant and its subsidiaries hold national and international trademark registrations or applications consisting of or containing the mark RED BULL in Austria and 202 other jurisdictions worldwide, such as Australian trademark no. 668835 RED BULL, registered from August 4, 1995. In addition, Complainant holds various registered European Union Trademark registrations or applications.
The disputed domain name was registered and is being used to attract for commercial gain Internet users searching for RED BULL job offers. The registration and use of <redbulljobs.com> was intentional and the intention was to deceptively attract Internet users to Respondent’s website under the disputed domain name. Once an Internet user enters Respondent’s website, it automatically redirects to a page which downloads a computer virus or redirects to different webpages, which appear to be phishing for information (personal details) by offering rewards of considerable value (e.g., an iPhone S6 or an Acer 15’ laptop).
Once an Internet user arrives at the redirected website, the following communication is displayed:
“Congratulations! You won a prize! Congratulations user! You have been selected by our automatic systems to take part in a short film questionnaire in which you can win an iPhone 65, Laptops Acer 15’ and two tickets to the cinema. You have been assigned a guaranteed prize! Answer 5 simple questions and check whether you won an iPhone 65, a Laptop or two tickets to the cinema. Click on the ‘OK’ button to take your prize before somebody else does! You have two minutes to proceed.”
The disputed domain name incorporates the RED BULL mark in its entirety. The addition of the word “jobs” to Complainant’s trademark does not prevent confusing similarity between the disputed domain name and Complainant’s trademark.
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. Respondent is not commonly known by the disputed domain name or the terms “redbull” or “redbulljobs.com”.
The trademark RED BULL is well-known all over the world and Respondent must have been aware of this fact when it registered the disputed domain name. Respondent’s obvious intent was to misleadingly divert consumers to its website, causing confusion among consumers creating the impression of relation with or sponsorship or endorsement of Respondent by Complainant. Respondent has registered and is using the disputed domain name with the purpose of creating an impression of affiliation with Complainant, its activity and trademarks.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
The Policy, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 (with implementing documents approved on October 24, 1999), is addressed to resolving disputes concerning allegations of abusive domain name registration. The Panel will confine itself to making determinations necessary to resolve this administrative proceeding.
It is essential to dispute resolution proceedings that fundamental due process requirements be met. Such requirements include that a respondent has notice of proceedings that may substantially affect its rights. The Policy, and the Rules, establish procedures intended to assure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., paragraph 2(a) of the Rules).
The Center forwarded the notification of the Complaint to Respondent via email and the written notice of the proceeding via courier to the contact details found in the appropriate WhoIs database confirmed by the Registrar. The Center also forwarded notification of default to Respondent via email.
Based on the methods employed to provide Respondent with notice of the Complaint and default the Panel is satisfied that the Center took all steps reasonably necessary to notify Respondent of the filing of the Complaint and initiation of this proceeding. The Panel also finds that the failure of Respondent to furnish a reply is not due to any omission by the Center.
Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:
(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.
In the administrative proceeding, the complainant must prove that each of these three elements are present.
As Respondent has failed to submit a response to the Complaint, the Panel may accept as true all of the allegations of the Complaint (see, Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009).
A. Identical or Confusingly Similar
Based upon the registered trademarks for RED BULL and the continuous use of the mark, Complainant clearly has rights in the mark. The Panel agrees with Complainant that <redbulljobs.com> is nearly identical to Complainant’s registered RED BULL trademarks. The fact that Respondent has added “jobs” to the disputed domain name does nothing to diminish confusion as <redbulljobs.com> remains confusingly similar to the RED BULL trademark. Complainant asserts, and the Panel agrees, that the disputed domain name <redbulljobs.com> is confusingly similar to the trademark RED BULL.
The Panel finds that the disputed domain name <redbulljobs.com> is confusingly similar to the trademark RED BULL owned by Complainant pursuant to paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists several circumstances, without limitation, that if found by the Panel shall demonstrate the respondent’s rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii). In particular, paragraph 4(c) states:
(i) before any notice to you [respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant has not licensed or authorized Respondent to use its trademark in any manner and there has never been any relationship between them.
In addition, Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. Moreover, Respondent has not answered Complainant’s contentions.
The Panel finds that Complainant has made out an unrebutted prima facie case on the second element. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name <redbulljobs.com> pursuant to paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists several circumstances, without limitation, that 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 you [respondent] have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
Respondent is clearly attempting to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Long after Complainant established its rights in its well-known trademark, Respondent acquired and began commercially using the disputed domain name to divert Internet traffic intended for Complainant. Respondent was certainly aware of Complainant’s rights in RED BULL when Respondent acquired the disputed domain name, which incorporates the well-known RED BULL trademark.
The disputed domain name has been used to deceptively attract Internet users to Respondent’s website. Once an Internet user enters Respondent’s website, it automatically redirects to a page which redirects the user to different webpages, which appear to be phishing for information (e.g., personal details) by offering rewards of considerable value including smart phones and laptop computers.
The Panel finds that Respondent’s registration and use of the disputed domain name, with actual knowledge of Complainant’s trademark rights, establishes Respondent’s registration and use of the disputed domain name in bad faith pursuant to 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, <redbulljobs.com>, be transferred to Complainant.
R. Eric Gaum
Date: July 28, 2016