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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Red Bull GmbH v. Domains by Proxy Inc./New Gold Mine

Case No. D2007-0684

 

1. The Parties

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

The Respondents are:
i) Domains by Proxy Inc. of Scottsdale, Arizona, United States of America; and
ii) New Gold Mine, Raleigh, North Carolina, United States of America.

2. The Domain Name and Registrar

The disputed domain name <redbullgames.com> (the “Domain Name”) is registered with Go Daddy Software.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 8, 2007. The filed Complaint named Domains by Proxy Inc. as the Respondent, attaching a print out of the applicable “Whois” information dated May 8, 2007 indicating that entity as the listed registrant for the Domain Name. On May 9, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the Domain Name. On May 11, 2007, Go Daddy Software transmitted by email to the Center its verification response indicating New Gold Mine as the listed registrant for the Domain Name, and providing contact details. In response to a notification by the Center that the registrant information had changed, the Complainant filed an amendment to the Complaint on June 4, 2007, adding New Gold Mine as Respondent. 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”), 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 12, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 2, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 5, 2007.

The Center appointed Alfred Meijboom as the sole panelist in this matter on July 16, 2007. 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 asserted and provided evidence in support of the following facts.

The Complainant is a worldwide producer of energy drinks. The Complainant has traded under the name RED BULL in Austria since 1987 and internationally since 1994. Today the RED BULL energy drink is sold in 141 countries, in 2006 three billion units were sold.

The Complainant holds a large number of trademark registrations and applications consisting of or containing the words RED BULL in more than 200 trademark jurisdictions, including the registration of the word mark RED BULL in the United States covering a wide range of goods and services (reg. no. 2494093).

The Complainant has promoted its trademark RED BULL by means of substantial international advertising for years. Sponsorship of sports events is an essential part of the Complainant’s marketing activities, as can shown by Complainant’s principal website at “www.redbull.com”. Amongst other domain names, the Complainant also holds the domain name <redbullgame.com> which links to its principal website.

The Domain Name was registered on October 6, 2006. The Domain Name initially led to a website displaying a number of computer games that had no relation with the Complainant’s RED BULL trademark or any of the Complainant’s activities. Currently the Domain Name leads to a parking site of the registrar Go Daddy Software, displaying various sponsored links.

 

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

The Complainant puts forward that different WIPO Panels considered the Complainant’s RED BULL trademark to have a very strong reputation and to be widely known all over the world (WIPO Case No. D2006-0909 (Red Bull GmbH v. Pregio Co., Ltd.); WIPO Case No. D2006-0746 (Red Bull GmbH v. Web Wax Designer)). Another WIPO Panel considered the combination of the two common words RED BULL for distinguishing the Complainant’s energy drink to be inherently distinctive and in fact a very strong mark (WIPO Case No. D2001-0522 (Red Bull GmbH v. Tony Marinelli)).

The Domain Name incorporates the Complainant’s famous RED BULL trademark in its entirety. The Complainants asserts that according to previous WIPO decisions this can already be sufficient to establish that a domain name is confusingly similar to a registered trademark.

Moreover, the mere addition of a common term such as “games” does not change the overall impression that the Domain Name is connected to the Complainant. A likelihood of confusion is further increased by the fact that the Complainant owns and uses the domain name <redbullgame.com>, which only differs from the Domain Name by the omission of the plural “s”.

Rights or Legitimate Interests

The Complainant has not licensed or otherwise permitted the 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. Given the fame and reputation of the RED BULL trademark and the Complainant’s activities all over the world, it is inconceivable that the Respondent was unaware of the Complainant when registering the Domain Name. Furthermore, none of the circumstances listed in paragraph 4(c) of the Policy, possibly demonstrating rights or legitimate interests, are given.

Registered and Used in Bad Faith

Since the RED BULL trademark is one of the best known trademarks all over the world, it is inconceivable that the Respondent was not aware thereof. For that reason, the Domain Name should be regarded to be registered in bad faith.

Furthermore, the Complainant contends that it is the Respondent’s obvious intent to misleadingly divert consumers to his website, for commercial gain, causing confusion by creating the impression of an economic relation with, sponsorship or endorsement of the Respondent by the Complainant. This constitutes evidence that the Domain Name is being used in bad faith according to paragraph 4 (b) (iii) and (iv) of the Policy.

The Complainant requests the Panelist to issue a decision that the Domain Name be cancelled.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the requested remedy can be granted if the Complainant asserts and proves each of the following:

A. that the Domain Name is identical or confusingly similar to a trademark or a service mark in which Complainant has rights; and

B. that the Respondent has no rights or legitimate interests in respect of the Domain Name; and

C. that the Domain Name has been registered and is or was being used in bad faith.

Proper Parties Respondent

The Respondent Domains by Proxy, Inc., known to provide privacy services, was listed as the registrant of the Domain Name in the Whois register prior to the filing of the Complaint. Following the filing of the Complaint, the registrar notified the Center that the registrant of the Domain Name was New Gold Mine. In similar cases panels have found that both the privacy service provider and the registrant communicated to the Center by the registrar in response to the request to verify the registrant, are proper parties respondent (see e.g. WIPO Case No. D2007-0633 (MySpace, Inc. v. Patrick F. Billy/Domains by Proxy, Inc.) and WIPO Case D2006-0881 (Ohio Savings Bank v. 1&1 Internet, Inc. and David Rosenbaum)). Accordingly, the Panelist finds that both Domains by Proxy, Inc. and New Gold Mine are proper parties respondent, and in this decision they are referred to jointly and severally as the “Respondent”.

A. Identical or Confusingly Similar

The Complainant has several international trademark registrations for RED BULL, including the registration of the word mark RED BULL in the United States covering a wide range of goods and services (reg. no. 2494093). The Panelist finds that the Complainant has rights in the RED BULL trademark.

For the purpose of assessing whether the Domain Name is identical or confusingly similar to the RED BULL trademark in which the Complainant has rights, the “.com” suffix is disregarded, it being a necessary component. The difference between the RED BULL trademark and the Domain Name is the addition of the word “games”. Because of the common character of the word “games” plus the fact that the Complainant sponsors large sports events under the RED BULL trademark and holds the domain name <redbullgame.com>, the Panelist is of the opinion that the addition of “games” does not reduce the likelihood of confusion. As a result the Panelist considers the Domain Name <redbullgames.com>, confusingly similar to the Complainant’s RED BULL trademark.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy the Complainant should prove that the Respondent has no right or legitimate interest in the Domain Name. According to the consensus view among panels, this condition is met if the Complainant makes a prima facie case that the Respondent has no rights or legitimate interests, and the Respondent fails to show one of the three circumstances mentioned in paragraph 4(c) of the Policy.

The Complainant contends that it has not authorized the Respondent to register the Domain Name and the Respondent did not dispute the Complainant’s claim to that effect. Nor could the Panelist establish any indications that the Respondent was previously known under the Domain Name or is using the Domain Name for bona fide offering of goods or services, or for non-commercial or fair use. For these reasons, the Panelist finds that the Respondent has no rights or legitimate interest in the Domain Name.

C. Registered and Used in Bad Faith

The Domain Name is composed of the obvious term “redbull”, which is identical to the RED BULL trademark of the Complainant, and the common word “games”. The Panelist considers that the RED BULL trademark has a reputation and is well-known throughout the world. In accordance with WIPO Case No. D2002-0625 (ACCOR v. Tigertail Partners) the Panelist finds it is reasonable to conclude that only someone who was familiar with the RED BULL trademark is likely to have registered the Domain Name. Therefore the Panelist finds that the Domain Name was registered in bad faith.

The Complainant must also prove that the Respondent used the Domain Name in bad faith.

According to paragraph 4(b) of the Policy an indication for use in bad faith is if the Respondent is intentionally attempting to attract, for commercial gain, internet users to his website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of his website or of a product or service on his website.

The Respondent generates traffic to the website linked to the Domain Name by creating a likelihood of confusion with the RED BULL trademark. The website is a parking site displaying various sponsored links, which use is considered to be commercial. Therefore, in light of paragraph 4(b) of the Policy, the Panelist finds that the Domain Name is also being used 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, <redbullgames.com> be cancelled.

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Alfred Meijboom
Sole Panelist

Dated: July 30, 2007