WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red Bull GmbH v. WhoisGuard Protected, WhoisGuard, Inc. / Star Max, StarMax
Case No. D2017-2600
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 WhoisGuard Protected, WhoisGuard, Inc. of Panama, Panama / Star Max, StarMax of Banteay Meanchey, Cambodia.
2. The Domain Names and Registrars
The disputed domain names <redbullqq.com>, <redbullsqq.com> and <redbull88.com> (the “Domain Names”) are registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 29, 2017. On January 2, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On January 2, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 10, 2018, 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 January 15, 2018.
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 January 18, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 7, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 9, 2018.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on March 5, 2018. 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 a worldwide producer of RED BULL Energy Drink. It was first sold in Austria in 1987 and internationally since 1992. Currently, the RED BULL Energy Drink is sold in 171 countries all over the world. Its sales volume has grown from 113 million serving units in 1994 to over 6 billion worldwide in 2016. The Complainant has also acquired reputation in the media sector and as the organizer of sport, music, fashion and cultural events. In 2016, Red Bull organized 950 events in more than 80 different countries with approximately 510,000 participants. It includes activities in relation to Red Bull Holden Racing Team, Formula 1, Red Bull Merchandising and Clothing, Dakar Rally Races, World Rally Championship, MotoGP, Red Bull X-fighters, Red Bull Media House, Red Bull Flugtag, to mention some of the Complainant’s activities.
The Complainant is the owner of multiple registrations and applications of trademarks consisting of or containing the RED BULL mark and covering an extensive range of goods and services, such as
- IR 961854 RED BULL with priority date September 27, 2007, and registration date March 19, 2008;
- US 4968853 RED BULL with priority date November 16, 2015, and registration date May 31, 2016.
The Complainant runs the RED BULL channel on YouTube and it has reached a cumulative total of over 5.7 million subscribers. Red Bull videos received more than 522 million views on YouTube in 2016. Currently, Red Bull has more than 48.5 million fans on Facebook.
The Complainant is the Registrant of a large number of domain names (over 1400) containing the RED BULL mark, both under generic and country-code Top Level Domains.
According to the Registrar, the Respondent registered the Domain Names on July 7, 2017. The Domain Names resolve to websites with the same content related to gambling.
5. Parties’ Contentions
The Complainant provides trademark registrations, and submits with reference to former UDRP cases that its trademark is internationally famous. The Complainant argues that the Domain Names reproduces the Complainant’s trademark. The Complainant argues that the additional “88” and “qq” used in the Domain Names, would not prevent a finding of confusing similarity. The addition of the letter “s” to the word “redbull”, in the domain name <redbullsqq.com>, does not significantly affect the appearance or pronunciation. Hence, the Domain Name is confusingly similar to the Complainant’s trademark.
The Complainant argues that the Respondent is not affiliated or related to the Complainant in any way, or licensed or otherwise authorized to use the Complainant’s trademark. The Respondent has no prior rights or legitimate interests in the Domain Names. The Respondent is not making a fair or legitimate noncommercial use of the Domain Names. On the contrary, according to the Complainant, the Respondent has picked the Domain Names to create the misleading impression of being in some way associated with the Complainant. The Respondent is making an illegitimate use of the Domain Names, with intent to divert Internet users to its gambling web page. It prevents the Complainant from exercising its rights to the trademark and managing its presence on the Internet.
As to bad faith, the Complainant argues that it is implausible that the Respondent was unaware of the Complainant when he registered the Domain Names. The Complainant is famous throughout the world. The Complainant’s mark is unique and it has been used for many years. The Respondent is using the Domain Names to set up a gambling web page. By using the Domain Names this way, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship and affiliation. Such use tarnishes the distinctiveness and reputation of Complainant’s trademarks and it disrupts the Complainant’s business by diverting consumers away from the Complainant’s official domain names and websites.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established that it has rights in the trademark RED BULL. WIPO Panels have already stated in various cases, that the Complainant’s trademark has a strong reputation and is known all over the world; see e.g., Red Bull GmbH v. Jinsoo Yoon, WIPO Case No. D2016-2351.
The test for confusing similarity involves the comparison between the trademark and the Domain Names. In this case, the Domain Names are confusingly similar to the Complainant’s trademark. Neither the addition of additional “88” and “qq”, nor the addition of the letter “s”, provide sufficient distinction from the Complainant’s mark. For the purpose of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain “.com”, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.
The Panel finds that the Domain Name are confusingly similar to trademarks in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register domain names containing its trademarks or otherwise make use of its marks. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way. It is unlikely that the Respondent independently and by chance chose to register the Domain Names without any knowledge of the Complainant and its RED BULL trademark. As documented by the Complainant, the Respondent uses the Domain Names to gambling web page. The Respondent diverts consumers from the Complainant’s official websites. This is neither a bona fide offering nor a legitimate noncommercial or fair use within the meaning of the Policy.
The Panel finds that the Complainant has made out an unrebutted prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names in accordance with paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Taking into account the content of the Respondent’s web page, and the fact that the Complainant is famous throughout the world, it is likely that the Respondent was aware of the Complainant’s trademark and its business when the Respondent registered the Domain Names.
The Respondent is using the Domain Names to resolve to its online casino. By using the Domain Names this way, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship and affiliation. This Panel agrees with the Complainant that such use tarnishes the Complainant’s trademark and it diverts consumers from the Complainant’s official websites. It constitutes bad faith pursuant to the Policy. The bad faith is supported by the fact that the Respondent has not responded to the Complainant’s contentions.
For the reasons set out above, the Panel concludes that the Domain Names were registered and are being used in bad faith, within the meaning of the 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 Domain Names, <redbullqq.com>, <redbullsqq.com> and <redbull88.com> be cancelled.
Date: March 14, 2018