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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Red Bull GmbH. v. Grey Design

Case No. D2001-1035

 

1. The Parties

The Complainant is Red Bull GmbH, a company incorporated under the laws of Austria, with principal place of business in Brunn 115, A-5330 Fuschl am See, Austria.

The Respondent is Grey Design, Vatan Cad. Tepe Sok. No:30/3 Caglayan Sisli, Istanbul, 34 80340, Turkey. The administrative contact for the Respondent is Yavuz Yuksel at the same address as the Respondent.

 

2. The Domain Name and the Registrar

The domain name at issue is <redbul.com> (hereinafter the "Domain Name"). The registrar is Dotster Inc. (the "Registrar").

 

3. Procedural History

On August 16, 2001, the Complainant filed by e-mail a complaint (the "Complaint") with the WIPO Arbitration and Mediation Center (the "Center"). The Center received a hard copy of the Complaint on August 17, 2001.

On August 20, 2001, the Center requested the Registrar to verify the Domain Name in dispute. The Registrar confirmed on August 21, 2001, that it is the registrar of the Domain Name, that the registrant of the Domain Name is Grey Design, Vatan Cad. Tepe Sok. No:30/3 Caglayan Sisli, Istanbul, 34 80340, Turkey, that the administrative contact for the Respondent is Yavuz Yuksel with the same address as the Respondent, that the Policy is applicable to the Domain Name and that the Domain Name registration is in "active" status.

The Center proceeded to verify whether the Complaint satisfies the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "ICANN Rules") and the World Intellectual Property Organization Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "WIPO Rules"), including the payment of the requisite fees. On August 24, 2001, the Center concluded that the Complaint satisfies all of these formal requirements.

On August 24, 2001, the Center sent a copy of the Complaint to the Respondent and to its administrative contact. The Center indicated this date as the formal date for the commencement of the administrative proceeding and September 13, 2001, as the last day for Respondent to file a Response.

On September 17, 2001, the Center notified the Respondent that it has failed to meet that deadline and was, therefore, in default.

On October 16, 2001, the Center informed the Parties that an administrative panel (the "Panel") had been appointed and transferred the file to the Panel.

The Panel finds it was properly constituted in compliance with the ICANN Rules and the WIPO Rules and the panelist issued a Statement of Acceptance and Declaration of Impartiality and Independence.

Having reviewed the communication records in the case file, the Panel finds that the Center has discharged its responsibility under paragraph (2)a of the Rules "to employ reasonably available means calculated to achieve actual notice to Respondents". Therefore, the Panel shall issue its Decision without the benefit of any Response from the Respondent.

 

4. Factual Background

The Complainant is the producer of a well-known energy drink marketed under the RED BULL trademark in 55 countries, including Turkey. Its RED BULL trademarks are registered in block letters and as a logo in numerous countries including Austria and Turkey for a wide range of goods and services. Lists of these trademarks are attached to the Complaint (Annex G and H).

The Respondent registered the Domain Name on April 13, 2001. Because of Respondent's default, nothing is known about the Respondent.

When the Complaint was filed, the Domain Name resolved to an "under construction" site (Annex J dated August 6, 2001).

 

5. Parties' Contentions

Complainant contends:

- that it is the largest world wide producer of energy drinks, that it first sold the RED BULL energy drink in Austria in 1987, and that today, the RED BULL energy drink is marketed in 55 countries including Respondent's country, Turkey (Annex D, E and F);

- that through extensive marketing activities Complainant's trademark is so well established, especially in Europe, that the Domain Name could be solely associated with Complainant's energy drink, and therefore the Domain Name at issue is misleading for the public;

- that the Domain Name <redbul.com> is confusingly similar to Complainant's well known trademark RED BULL and constitutes a case of "typosquatting" - i.e. intentional registration of domain names which are misspellings of distinctive names. The Complainant quotes a previous WIPO decision in its favor, which held that the RED BULL trademark is "inherently distinctive" and "very strong" (D2001-0522);

- that the Respondent has no right or legitimate interests to the Domain Name at issue because he is neither personally known, nor owns a company, nor a trademark corresponding the Domain Name;

- that the Complainant has neither licensed nor permitted the Respondent to use its RED BULL trademark or apply for any domain name incorporating this mark;

- that the Respondent does not appear to be interested in the Domain Name because it did not use it and was ready to sell it. The Complainant submitted written evidence showing that the Respondent offered to transfer the Domain Name to the Complainant for USD 10.000 (Annex L). The Complainant considers the amount excessive and an indication that the sole purpose of registration was to sell it;

- that the Domain Name has been registered in bad faith because Respondent must have been aware of the fame of Claimant's trademark, and that the primary purpose of registration was to exploit its notoriety. Complainant filed a printout of Respondent's website page stating "under construction" and displaying the words "Red Bul" in the same colors as Complainant's trademark;

- that the Respondent's passive holding of the Domain Name registration constitutes use in bad faith.

The Respondent did not file any Response to the Complaint. However, in his correspondence addressed to the Complainant (Annex K and L), Respondent's administrative contact contends:

- that the Domain Name and Complainant's trademark are similar but not identical, and that "some confusions may be faced in the future";

- that "redbul" means "find" in Turkish and that he was planning to use it for a search engine;

- that he had no intention to "imitate, bother or confuse" Complainant's company;

- that while the Domain Name and Claimant's trademark are very similar, this is simply a coincidence because he did not know about the RED BULL drink before receiving Claimant's correspondence. Respondent's administrative contact indicated that he would transfer the Domain Name to the Complainant for USD 10.000 in order to avoid confusion of Complainant's clients.

 

6. Discussion and Findings

To have the disputed Domain Name transferred to it, Complainant must prove each of the following (Policy, paragraph 4(a)):

(i) that the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) that the Respondent's domain name has been registered and is being used in bad faith.

Identity or Confusing Similarity

Complainant has shown that it owns numerous trademark registrations of the mark RED BULL in Austria and other countries, including Turkey. Respondent's administrative contact repeatedly admitted that the Domain Name and Complainant's trademark are similar. This is a typical case of "typo-squatting" where the infringing domain name is one letter less than or different from the Complainant's mark. Such attempts have been disapproved of in various WIPO decisions (e.g. Telstra Corp. Ltd. v. Warren Bolton Consulting Pty. Ltd. D2000-1293; Playboy Enterprises International Inc. v. SAND Webnames-For Sale D2001-0094).

The Panel thus finds that the Domain Name at issue is confusingly similar to Complainant's trademark.

Legitimate Rights or Interests

There is no evidence that, before any notice of the dispute, Respondent made any use of, or demonstrable preparations to use the Domain Name. The "Red Bul under construction" site (Annex J) does not qualify as a bona fide offering of goods or services. Respondent does not appear to be commonly known by the Domain Name. There is no evidence of noncommercial or fair use of the Domain Name. The Respondent did not file a Response.

Respondent alleges in an e-mail to Complainant (Annex K) that the word "redbul" means "find" in Turkish. This allegation is not correct. The English verb "find" translates into "bul" in the Turkish language. Neither the word "redbul" nor the word "red" have any dictionary meaning in Turkish. Respondent has not given any explanation why he chose to combine the word "bul" with "red".

Therefore, the Panel finds that the Respondent does not have legitimate rights or interest in the disputed Domain Name.

Registration and Use in Bad Faith

Complainant has shown that it registered and uses the RED BULL trademark also in Turkey, and the fact that Respondent used Complainant's colors on its website (Annex J) indicates that he was aware of this trademark when he registered the Domain Name <redbul.com>. Despite the typo, the Domain Name clearly identifies Complainant's well-known RED BULL trademark. This well-known and strong trademark (see D2001-0522) is so obviously connected with Complainant that by definition the registration of the Domain Name was made in opportunistic bad faith, and any use by the Respondent of this Domain Name would necessarily create a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of a Respondent's website in the sense of paragraph 4(b)(iv) of the Policy (Banca della Sella S.p.A. v. Mr. Paolo Parente, D2000-1157; Veuve Cliquot Ponsardin v. The Polygenix Group Ltd., D2000-0163; Ingersoll-Rand v. Frank Gully, D2000-0021).

The Domain Name seeks to take advantage of typographical errors made by Internet users who are seeking the Complainant's commercial website in a bad faith attempt to divert them to Respondent's website (Playboy Enterprises International Inc. v. SAND Webnames-For Sale D2001-0094).

Moreover, the fact that Respondent's administrative contact was willing to sell the Domain Name for US$ 10,000, an amount exceeding by far the out-of pocket costs of registration, constitutes evidence of registration and use of the Domain Name in bad faith (World Wrestling Federation Entertainment, Inc. v. Bosman, D1999-0001).

The Panel, therefore, finds that Respondent registered and used the Domain Name in bad faith.

 

7. Decision

For all of the foregoing reasons, this Panel decides that the Domain Name <redbul.com> registered by Respondent is confusingly similar to the trademark "RED BULL" owned by the Complainant, that the Respondent does not have rights or legitimate interests in respect of this Domain Name, and that the Respondent registered and used the Domain Name in bad faith. Accordingly, pursuant to paragraph 4 (i) of the Policy, the Panel requires that the registration of the Domain Name <redbul.com> be transferred to the Complainant.

 


 

Andrea Mondini
Sole Panelist

Dated: October 24, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2001/d2001-1035.html

 

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