WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. Whois Agent, Domain Protection Services, Inc. / esco escortlar, escort sitesi
Case No. D2017-1639
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 Whois Agent, Domain Protection Services, Inc. of Denver, Colorado, United States of America ("United States") / esco escortlar, escort sitesi of California, United States.
2. The Domain Names and Registrar
The disputed domain names <redbullescort.com> and <redbulleskort.com> are registered with Name.com, Inc. (Name.com LLC) (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 23, 2017. On August 23, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 23, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that 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 September 5, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 25, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 26, 2017.
The Center appointed Gökhan Gökçe as the sole panelist in this matter on September 29, 2017. 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 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).
The RED BULL marks are protected in more than 202 jurisdictions (including the United States and Turkey) worldwide. The first trademark registrations date back to the 1980s. The Complainant claims trademark protection for all 45 trademark classes. As examples, the Complainant submitted copies of the following registrations as Annex G to its Complaint:
International Trademark No. 945573 RED BULL and figurative element registered on August 15, 2007;
International Trademark No. 961854 RED BULL registered on March 19, 2008;
United States Trademark Registration No. 3092197 RED BULL registered on May 16, 2006;
United States Trademark Registration No. 3197810 RED BULL and figurative element registered on January 16, 2007;
United States Trademark Registration No. 4647395 RED BULL registered on December 2, 2014.
Pursuant to Panel's research, the Complainant is also proprietor of trademark registrations in Turkey, including the Turkish trademark No. 2008 55002 for the word mark RED BULL, registered on December 22, 2009.
The Complainant operates its main website at "www.redbull.com". The Complainant is the registrant of a large number of domain names containing the RED BULL mark, both under generic and country-code Top-Level Domains. Amongst others, the Complainant owns and operates the domain names <redbull.com.tr>, registered on September 9, 2004.
Additionally, to promote its Red Bull brand, the Complainant has engaged in numerous international and national events such as Formula 1, MotoGP etc. Overall, the Complainant now enjoys more than 44.2 million fans on Facebook and its videos have received more than 355 million views on YouTube.
The disputed domain names <redbullescort.com> and <redbulleskort.com> were registered respectively on July 22, 2016 and October 20, 2016.
The Panel visited the disputed domain names on October 12, 2017 and observed that the disputed domain names automatically directed to the website linked to the domain name <elitemel.com>, a pornographic website in Turkish language offering various adult services with photos of naked women and their phone numbers. In light of the content observed at the website linked to the disputed domain names, it can be stated the Respondent runs a business of organizing sex dates with escort girls.
5. Parties' Contentions
The Complainant requests the transfer of the disputed domain names.
The Complainant is of the opinion that the disputed domain names are 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 words 'escort' and 'eskort' as common terms do not change the overall impression of the designation as being a domain names connected to the Complainant and do 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 names. 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 names. 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 or with the Complainant. The Complainant further claims that the disputed domain names resolve to a website in Turkish with adult content.
The Complainant argues that the Respondent was and is quite obviously trying to exploit the fame and reputation of the Complainant's trademarks. The possible aim was and is to attract to the Respondent's websites Internet users looking for information on the Complainant and its activities and divert them from the legitimate websites of the Complainant. The Respondent has registered and is using the disputed domain names illegitimately.
Finally, it is argued that the Respondent has registered and is using the disputed domain names 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 names. The Respondent's obvious intent was to misleadingly divert the consumers to its website, causing confusion among consumers by creating the impression of a relation with or sponsorship or endorsement of the Respondent by the Complainant. It is apparent that the intent of the Respondent was to exploit the reputation of the Complainant and the RED BULL trademarks and to disrupt the business of a competitor – the Complainant – by diverting consumers away from the Complainant's websites. The Complainant asserts that with combination of "red bull" and "escort" or "eskort", the Respondent attempts to attract Internet users seeking information about Red Bull and Ford Escort rallies.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall make a decision 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:
(1) The domain names are identical or confusingly similar to the trademark in which the Complainant has rights; and
(2) The Respondent has no rights or legitimate interests in respect of the domain names; and
(3) The domain names have been registered and are 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 formally replied to the Complaint, Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
In the event of lack of a response, the Panel may – as appropriate – accept the provided factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain names are 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 the United States and Turkey, but also in more than 202 other jurisdictions.
The well-known character of the Complainant's trademarks is undisputed and has been confirmed by numerous UDRP panels (see Red Bull GmbH and Red Bull AG v. ec aka 3.taiwan, WIPO Case No. D2013-1250).
Although not identical, the disputed domain names fully incorporate the Complainant's RED BULL trademark. The disputed domain names differ from the RED BULL trademark only by the addition of the terms "escort" and "eskort". In the Panel's view, the addition of the words "escort" and "eskort" does not negate the confusing similarity between the Complainant's trademark and the disputed domain names. The Panel finds that the incorporation of the words "escort" and "eskort" does not create a new distinctiveness separate from the Complainant's RED BULL trademark.
The Panel concludes that the disputed domain names are confusingly similar to the Complainant's RED BULL trademark.
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
In accordance with paragraph 4(a)(ii) of the Policy, the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain names. It is established in numerous UDRP decisions that it is difficult for a complainant to prove a negative and for that reason the complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests in a domain name, Belupo d.d. v. WACHEM d.o.o, WIPO Case No. D2004-0110. Once the complainant makes a prima facie case, the burden of demonstrating rights or legitimate interests in the disputed domain name shifts to the respondent. The Policy at paragraph 4(c) provides various ways in which the respondent may demonstrate rights or legitimate interests in a domain name. If the respondent fails to do so, the complainant is deemed to have satisfied paragraph 4(a) (ii) of the Policy.
In the light of the evidence submitted by the Complainant, and the Panel's researches, e.g., trademark registration certificates, domain name registrations etc., it is clear to the Panel that the Complainant has earlier and lawful rights in the RED BULL trademarks. Therefore, the Panel finds on the current record that the Complainant has proved rights in the RED BULL trademarks and also established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain names for the purposes of the Policy.
The Panel also accepts that the Respondent is not commonly known by the disputed domain names. The Panel notes, based on the available record, that the Respondent does not appear to have any relevant registered trademarks or trade names and that no license or authorization of any other kind has been given by the Complainant to use its registered trademark. Therefore, in the absence of any license or permission from the Complainant to use any of its trademarks or to apply for or use any domain name incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the disputed domain names could be claimed by the Respondent. Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055.
Furthermore, the Panel is prepared to find that the Respondent is not using the disputed domain names 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.
Since Respondent has offered no rebuttal evidence and the Panel has concluded that Policy paragraph 4(c) is otherwise inapplicable in this case, the Panel is compelled to rule that the prima facie case is sufficient to support a finding in favor of the Complainant with respect to this issue. See, Philip Morris USA Inc. v. yfmg, WIPO Case No. D2010-0058 ("Once the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names, the burden shifts to the Respondent to show that it has rights or legitimate interests in respect to the disputed domain names."); and Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
The requirements of 4(a)(ii) of the Policy are fulfilled and consequently the Panel finds in favor of the Complainant on the second element of the Policy.
C. Registered and Used in Bad Faith
As previous UDRP panels have found, the Panel believes that the Complainant's RED BULL mark enjoys worldwide fame. Therefore, on that basis, the Panel concludes that the Respondent could not have reasonably believed that its use of the disputed domain names would not illegitimately impact upon the Complainant's rights in that mark, and thus the name must have been registered and used in bad faith. See, Red Bull GmbH, Audi AG v. Thijjs van der Tuin, WIPO Case No. D2016-0061 ("Registration of a domain name including a well-known trademark by a party with no connection to the owner of the trademark and no authorization and no legitimate purpose to use the mark is a strong indication of bad faith."); and Gray Television Group, Inc. v. Manila Industries, Inc., WIPO Case No. D2007-0504. Therefore, registration of a domain name including a well-known trademark by a party with no connection to the owner of the trademark and no authorization and no legitimate purpose to use the mark is a strong indication of bad faith (Société pour l'Oeuvre et la Mémoire d'Antoine de Saint Exupéry – Succession Saint Exupéry – D'Agay v. Perloegos Properties, WIPO Case No. D2005-1085).
The Panel rather believes that the Respondent has registered and used the disputed domain names 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 names as a "jump page" to direct customers to a pornographic 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.
Therefore, in light of the above-mentioned circumstances in the present case, the Panel finds that the disputed domain names have been registered and are being used in bad faith and that the Complainant has established the third element under 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 names <redbullescort.com> and <redbulleskort.com> be transferred to the Complainant.
Date: October 12, 2017