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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Red Bull GmbH v. Web Wax Designer

Case No. D2006-0746

 

1. The Parties

The Complainant is Red Bull GmbH, Fuschl am See, Austria, represented by Schцnherr Rechtsanwдlte OEG, Austria.

The Respondent is Web Wax Designer, Inderdeep Singh, Jalandhar, Punjab, India.

 

2. The Domain Name and Registrar

The disputed domain name <redbullshoes.com> is registered with Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the“Center”) on June 14, 2006. On June 14, 2006, the Center transmitted by email to Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the domain name at issue. On June 16, 2006, Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 21, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 11, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 24, 2006.

The Center appointed Leon Trakman as the sole panelist in this matter on August 7, 2006. 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 a worldwide producer of energy drinks, including the RED BULL energy drink, which was first sold in Austria in 1987 and internationally since 1994. Complainant operates its principal website under the name <redbull.com> and uses the internet domain name <redbull.in> to re-direct to <redbull.com>.

Complainant is the Registrant of a number of domain names containing the mark RED BULL, both under generic and country-code Top Level Domains. Complainant operates its principle website at “www.redbull.com”. The site contains information on the RED BULL energy drink, sports events sponsored by Complainant and links to other RED BULL websites.

RED BULL energy drink is currently sold in 133 countries with sales in excess of two billion units in 2005. Complainant reports that, since its launch in 1987 until 2005, it has spent more than EUR 922 million in penetrating the marketplace in TV, cinema and radio; and that it has an annual turnover of approximately EUR 2.1 billion.

Complainant has promoted the trademark RED BULL and the trademark DOUBLE BULL using the device of fighting bulls. It has engaged in substantial international advertising, including sponsoring public sports events, notably Formula One Racing. Complainant has also promoted the RED BULL energy drink in other marketing materials, such as in sales folders, consumer leaflets, displays, sampling cars, clothes, among other resorts. Through such sales activities, television broadcasts, internet activities and events sponsored by Complainant, the RED BULL energy drink and the trademark RED BULL has become widely known internationally and especially in Austria. Surveys conducted in 2003 in Germany and Austria confirm that 83,7% and 90% of the general public associated the mark with the product RED BULL energy drink.

Respondent is the Registrant of the disputed domain name <redbullshoes.com> which was registered on September 16, 2005. That site displays principally footwear for men and ladies, including indications on codes and sizes, footwear for kids measured in centimeters as well as Punjabi Jutti shoes for both men and women. The top bar at the site shows shod feet and a picture of French top model Laetitia Casta. The website features a picture of a bull together with a RED BULL logo. The website provides a link named “contact”, under which contact information is provided to an address in Batala, as well as phone numbers.

Complainant verified that the premise at the stated address is a vacant plot of land. The telephone numbers indicated belong to a residential area and the subscriber was not involved in shoe manufacturing. Complainant also adduced evidence that it tried to contact the owner of the domain name. However, the address stated in the whois database is incomplete and the telephone number provided there has been inactive for some time.

 

5. Parties’ Contentions

A. Complainant

i. The Domain Name is Identical with or Confusingly Similar to Trademarks in which the Complainant has Rights.

Complainant contends that it holds international trademark registrations or applications consisting of or containing the sign RED BULL, that it operates its business at its principal website under the name <redbull.com> and that it uses the internet domain name <redbull.in> to re-direct Internet users to <redbull.com>.

Complaints maintains further, that its domain name and trademarks are distinctive and that the disputed trademark registered by Respondent, <redbullshoes.com>, incorporates Complainant’s famous trademark RED BULL in its entirety and is therefore identical to it.

Complainant alleges in particular, that the distinctive part of the domain name in dispute, <redbullshoes.com>, is “redbull”, which is identical with the various trademarks and trademark applications containing the sign RED BULL owned by Complainant. The only deviation is that Respondent has added the descriptive term “shoes” as a suffix. Complainant argues that the mere addition of a common term such as “shoes” does not change the overall impression created that the domain name is connected to Complainant.

Complainant asserts that, as a result, “consumers worldwide will think that there is an economic relationship with, sponsorship or endorsement of Respondent with Complainant, since they would see the disputed domain name as a variation of Complainant’s trademark RED BULL, integrating the trademark RED BULL in its entirety and merely adding a generic suffix.”

Complainant maintains that, for these reasons, there is a confusing similarity between Complainant’s trademark RED BULL and the disputed domain name, so that the first element required by the Policy is satisfied.

ii Respondent has no Rights or Legitimate Interests in Respect of the Domain Name

Complainant contends that Respondent has no rights in the disputed domain name. In particular, Complainant denies that it has licensed or otherwise permitted Respondent to use any of its trademarks. Nor has Respondent any legitimate interest in the disputed domain name.

Complainant argues that it is clear that Respondent does not have a right to or legitimate interest in the trademark RED BULL, nor in the disputed domain name.

In support of its contentions, Complainant draws attention to its worldwide use of the trademark, its clearly legitimate interest in that mark and in the disputed domain name. Complainant maintains further, firstly, that Respondent must reasonably have known of the existence and worldwide reputation of Complainant’s trademark at the time of Respondent’s registration and use of the disputed domain name, secondly, that it is not reasonable to assume that Respondent would have put two unlike words like “red” and “bull” together in a domain name without prior knowledge of Complainant’s trademark, and thirdly, that Respondent’s use of the disputed domain name in which Respondent had no rights constitutes an illegitimate use.

iii The Disputed Domain Name was registered and is Being Used in Bad Faith

Complainant contends that Respondent registered and is using the disputed domain name in bad faith, in breach of paragraph 4(b)(iv) of the Policy, inter alia, for the purpose of attracting, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s mark.

Complainant also contends that, in selling merchandise over the Internet under such domain names as <redbullshoes.com>, Respondent is acting in bad faith and deliberately misleading consumers into believing that they are accessing Complainant’s website.

Complainant also alleges that, in providing false whois data, Respondent has demonstrated further bad faith.

Complainant requests that the disputed domain name be cancelled.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

Complainant is the proprietor of multiple registrations and applications of trademarks consisting of or containing the name RED BULL. These registrations cover an extensive range of goods and services spanning dozens of trademark classes.

The distinctive part of the domain name in dispute, <redbullshoes.com>, is “redbull”. This disputed domain name incorporates Complainant’s famous trademark RED BULL in its entirety. As a result, the disputed domain name is clearly similar to the various trademarks and trademark applications containing the name RED BULL in which Complainant has rights. The only deviation is that Respondent has added the descriptive term “shoes” as a suffix. The mere addition of a common term such as “shoes” does not change the overall impression in the minds of consumers that the designation of that domain name connects it to the Complainant (see e.g., PepsiCo, Inc v. Pepsi SRL (a/k/a P.E.P.S.I.) v. EMS Computer Industry (a/k/a EMS), WIPO Case No. D2003-0696).

A number of WIPO Panel decisions under the UDRP have recognized that incorporating a trademark in its entirety can be sufficient to establish that a domain name is identical or confusingly similar to a registered trademark (see PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I) and EMS COMPUTER INDUSTRY (a/k/a EMS), WIPO Case No. D2003-0696).

Panels have also held that the use of a purportedly distinguishable suffix does not, in and of itself, differentiate between a trademark and a disputed domain name. For example, in a 2005 case on point, Red Bull GmbH v. Emory Virgil (WIPO Case No. D2005-0381 concerning the domain name <redbullscasino.biz>), the Panel held that the addition of a generic and descriptive word does not render the disputed domain name sufficiently different from Complainant’s mark.

The distinctivness of Complainant’s trademark was elucidated further in Red Bull GmbH v. Tony Marinelli (WIPO Case No. D2001-0522). There the Panel stated that “Complainant’s trademark RED BULL is composed of two common words of the English language, which in their combination are arbitrarily used to distinguish the energy drink sold by the Complainant and therefore are inherently distinctive. Such trademarks are in fact very strong marks.” (emphasis added; confirmed in Red Bull GmbH v. Emory Virgil, WIPO Case No. D2005-0381.)

The Panel agrees with Complainant that it is common practice with Internet domain names that blank spaces in tradenames or trademarks are omitted to form a company’s domain name, as Complainant also did for its main website under the domain name <redbull.com>. The addition of the generic Top-Level Domain (gTLD) “.com” to the disputed domain name is also not, by itself, significant as to likelihood of confusion (see e.g. PepsiCo, Inc v. Pepsi SRL (a/k/a P.E.P.S.I.) v. EMS COMPUTER INDUSTRY (a/k/a EMS), WIPO Case No. D2003-0696).

The Panel maintains, further, that consumers worldwide are very likely to believe that there is an economic relationship with, sponsorship or endorsement of Respondent by Complainant. They are also likely to view the disputed domain name as a variation of Complainant’s trademark RED BULL, integrating the trademark RED BULL in its entirety and merely adding a generic word and suffix.

The fact that Complainant and its subsidiaries also sell merchandise over the Internet, for example on the website under the domain <redbullracing.com>, is likely to reinforce the confusingly similar nature of Respondent’s registration. Consumers are likely to be misled into accessing Respondent’s website by the false belief that they are accessing Complainant’s website.

For these reasons, the Panel holds that there is a confusing similarity between Complainant’s trademark RED BULL and the disputed domain name.

B. Rights or Legitimate Interests

Respondent has no rights in the disputed domain name. 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 of it.

Respondent also has no legitimate interest in the disputed domain name. Given the wordwide use and reputation of Complainant’s trademarkRED BULL, it is clear that the legitimate interest in the domain name resides in Complainant.

While it is conceivable that, notwithstanding the legitimate interest of Complainant, Respondent could also have a legitimate interest in that same name, for example given that Respondent’s business is connected to the disputed name or assuming that Respondent was not aware of Complainant’s name, such a construction is not reasonable in this particular case. Given Complainant’s worldwide interests in the trademark RED BULL, it is unlikely that Respondent was unaware of Complainant both before registering the disputed domain name, and especially once Respondent had begun to use it. It is also unlikely that Respondent conceived of such an unusual combination of words as “red” and “bull” quite independently of Complainant’s trademark in the particular circumstances.

Based on the evidence provided, the Panel does not find any of the circumstances listed under paragraph 4(c) of the Policy to be present. It does not appear that Respondent was making a bona fide use of the domain name before notice of the dispute; nor does it appear that the disputed domain name is Respondent’s name or that Respondent is commonly known by it; nor does it appear that Respondent is making a legitimate non-commercial or fair use of the domain name.

As a result, the Panel holds that Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

The Panel holds further that Respondent has registered and is using the disputed domain name in bad faith in violation of paragraph 4(b) of the Policy.

Respondent has registered and used the disputed domain name in bad faith, in breach of paragraph 4(b)(iv) of the Policy, for the purpose of attracting, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website and of the products listed on its website.

The trademark RED BULL is well known worldwide. As stated above, Respondent must reasonably have been aware of this fact, but nevertheless chose to register the disputed domain name which incorporates Complainant’s trademark in its entirety, with the addition of a generic name. In doing so, it may be inferred that Respondent intended to exploit the public recognition of Complainant’s name in order to attract consumers to Respondent’s website for the purpose of commercial gain, and at the expense of Complainant’s business.

As a consequence, the disputed domain name has been registered and is being used in bad faith as outlined in paragraph 4(b)(iv) of the Policy.

The Panel holds further that, by selling merchandise over the Internet under the domain names <redbullshoes.com>, Respondent has demonstrated bad faith in deliberately misleading consumers into believing they are accessing Complainant’s website.

Moreover, the fact that Respondent provided false whois data reinforces the finding of bad faith (See Grupo Televisa, S.A., de C.V et al. v. Autosya S.A. de C.V, et al, WIPO Case No. DTV2001-0007). In so acting, it is reasonable to assume that Respondent purported to both mislead and deceive.

As the Administrative Panel determined in Forte Communications, Inc. v. Service for Life (WIPO Case No. D2004-0613):

“Respondent has purposefully used false information in registering the Domain Name to conceal Respondent’s identity and to make it difficult to locate Respondent for purposes of lawfully pursuing the Domain Name. Respondent has taken deliberate steps to conceal its true identity.”

See also Telstra Corporation Limited v. Nuclear Marsh-mallows (WIPO Case No. D2000-0003), finding bad faith where the “Respondent has taken deliberate steps to ensure that its true identity cannot be determined and communication with it cannot be made”. )

The Panel therefore concludes that Respondent both registered and is using the disputed domain name in bad faith.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <redbullshoes.com> be cancelled.


Leon Trakman
Sole Panelist

Dated: August 17, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0746.html

 

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