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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Red Bull GmbH v. Euinet Corporation

Case No. D2007-0771

 

1. The Parties

The Complainant is Red Bull GmbH, Austria, represented by Schцnherr Rechtsanwдlte GmbH, Austria.

The Respondent is Euinet Corporation, New York, United States of America.

2. The Domain Name and Registrar

The disputed domain name <redbulldeals.com> is registered with Go Daddy Software.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 25, 2007. On May 25, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On May 29, 2007, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the administrative and technical contact details. 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 5, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was June  25, 2007. The Response was filed with the Center on June 25, 2007.

The Center appointed David J.A. Cairns as the sole panelist in this matter on July 10, 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 is the producer of the Red Bull energy drink and it is among the largest producers of energy drinks worldwide. Red Bull was first sold in Austria in 1987. Currently, the Red Bull energy drink is sold in approximately 141 countries. The Complainant has made substantial investments in marketing and promotion of the Red Bull energy drink worldwide, becoming a market leader.

The Complainant administers its principal website under the general domain name <redbull.com> which was registered on January 5, 1998. The Complainant is also the registrant of a number of other domain names including <redbull.org> or <redbull.at>. The Complainant’s website provides a link to countries where the Complainant operates. The Complainant’s website also includes information on the Red Bull energy drink, sports events sponsored by the Complainant and links to other Red Bull sites.

The Complainant is the proprietor of multiple registrations and applications of trademarks consisting of or containing the words RED BULL, holding national and international trademark registrations worldwide. Its registrations include United States Patent and Trademark Office registration No. 2,494,093 for the trademark RED BULL in connection with seventeen international classes, registered on October 2, 2001, and with a priority date of September 1, 1994.

The Respondent registered the disputed domain name on April 30, 2006. The administrative and technical contact name for the registration is ‘Maurice DiBamou’ at Euinet Corporation. The Respondent’s website at the disputed domain name offers for sale numerous categories of consumer goods. The Respondent’s website does not offer for sale the Complainant’s energy drink, or any competing energy drink. The pages of the Respondent’s website have a red banner and the words RED BULL, surmounted by a bull motif, a stylised word ‘deals’, accompanied by the slogan ‘knock-out value’.

 

5. Parties’ Contentions

A. Complainant

The Complainant sold more than 3 billion units of its Red Bull energy drink in 2006. The Complainant’s energy drink brand is supported by substantial advertising. The Complainant states that through sales activities, television broadcasts, Internet activities and sponsored events the RED BULL trademark was become a well-known trademark, as confirmed by an Affidavit of Dr. Volker Viechtbauer, General Counsel of the Complainant.

The Complainant states that the disputed domain name incorporates the famous RED BULL trademark in its entirety. The Respondent has added the descriptive term ‘deals’ as a suffix, which does not change the overall impression of the designation as being a domain name connected to the Complainant. Consumers are likely to think that the deals offered via the website under the disputed domain name come from or are authorised by the Complainant. For these and other reasons, the Complainant alleges that the disputed domain name is confusingly similar to the RED BULL trademark.

The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or variations thereof. The Complainant alleges that the Respondent registered the disputed domain name to create the misleading impression of being in some way associated with the Complainant, thereby exploiting the fame and reputation of the Complainant’s trademarks. The Complainant states that it is inconceivable that the Respondent did not know of the Complainant before registering the disputed domain name. Further, the Respondent has not been commonly known by this domain name, but rather intends to have a free ride on the fame and goodwill of the Complainant’s trademarks, and to profit from consumer confusion.

The Complainant states that the disputed domain name was registered and being used in bad faith because the Respondent deliberately registered the domain name, incorporated the famous RED BULL trademark, to exploit the reputation of the Complainant, and to cause confusion among customers by creating the impression of economic relation with or sponsorship or endorsement of the Respondent by the Complainant. Further, the Respondent uses a modified logo incorporating a bull device which is identical to the Complainant’s bull device, adding to the impression of some connection with the Complainant.

Accordingly, the Complainant requests that the disputed domain name be cancelled.

B. Respondent

The Respondent sent the following email on June 25, 2007:

“Due to circumstances beyond his control my attorney was not able to send you a response before today.

We filed a suit against Red Bull. I will send you a copy of the law suit in the following days.

As they claim we have not registered our domain in bad faith.

There is no action that suggest we acted improperly with that domains but try to conduct an honorable business. The Choice of the name Red Bull has reference to the prophecy that such an animal will precede the arrival of our powerful Messiah.

Unlike Red Bull who stole the name and the product from the Thai people.

That’s why they go around intimidating and slandering people.

We will defend ourselves vigorously and many Jewish organizations including the press will assist us in this.

Goliath thought he will take care about David pretty fast. The rest is history.

The only concession I could make is to write a disclaimer on my site that I am not affiliated in any shape or form with that company of bullies. (ironic isn’t it).

I appeal to you not to allow the WIPO be a travesty of Justice in this case.

Thanking you in anticipation for your attention,

Best regards

Maurice diBamou”.

The Panel accepts Maurice DiBamou's email as a response authorised by the Respondent.  No further submissions were presented by the Respondent. In particular, the Respondent did not send a copy of the law suit referred to in its email.

 

6. Discussion and Findings

The Panel is required to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems appropriate.

Paragraph 4(a) of the Policy requires the Complainant to prove all three of the following elements to be entitled to the relief sought: (i) that the disputed 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 disputed domain name; and (iii) that the Respondent’s domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the Policy elaborates some circumstances that shall be evidence of the registration and use of a domain name in bad faith. Paragraph 4(c) sets out various circumstances which, if found by the Panel to be proved based on the evaluation of all the evidence presented, shall demonstrate that the Respondent has rights and legitimate interests in the disputed domain name.

A. Identical or Confusingly Similar

The Panel accepts that the Complainant owns registered trademarks for the word mark RED BULL, and in particular United States Patent and Trademark Office registration No. 2,494,093 referred to above.

The disputed domain name is not identical with the RED BULL trademark, but does incorporate this mark entirely. The fact that a trademark is incorporated in its entirety in a domain name is a solid indication, but does not ipso facto mean, that the domain name is confusingly similar to the trademark. The similarity of the trademark and the domain name depends on many factors, including “the relative distinctiveness of the trademark and the non-trademark elements of the domain name, and whether the non-trademark elements detract from or contradict the function of the trademark as an indication of origin” (See Pfizer Inc v. The Magic Islands, WIPO Case No. D2003-0870).

The disputed domain name differs from the Complainant’s trademark in that there is no space between the words “red” and “bull” and the suffix “deals” has been added to the registered trademark. The omission of a space between the words ‘red’ and ‘bull’ is of no significance in determining confusing similarity (see Red Bull GmbH v. Emory Virgil, WIPO Case No D2005-0381).

In the present case, the disputed domain name is confusingly similar to the RED BULL trademark for the following reasons: (i) ‘red’ and ‘bull’ are both ordinary descriptive words, but form a distinctive combination; (ii) ‘deals’ is an ordinary descriptive word; (iii) ‘deals’ refers to a commercial activity; (iv) in the disputed domain name, ‘deals’ refers specifically to ‘redbull’, suggesting a commercial activity relating to ‘redbull’, thereby confirming the trademark function of the ‘redbull’ element of the disputed domain name; (v) the RED BULL trademark is widely-known internationally and Internet users will associate the disputed domain name with the Complainant’s trademark.

Accordingly, the Panel finds that the first element required by the Policy is satisfied.

B. Rights or Legitimate Interests

The Panel notes the following circumstances in relation to any possible rights or legitimate interests of the Respondent in the disputed domain name: (i) there is no evidence before the Panel that the Respondent has any proprietary or contractual rights in any registered or common law trademark corresponding in whole or in part to the disputed domain name; (ii) the Respondent is not authorized or licensed by the Complainant to use the RED BULL trademark or to register and use the disputed domain name; (iii) there is no evidence that the Respondent has been commonly known by the disputed domain name; and (iv) The Respondent’s own explanation of the choice of the disputed domain name (“The Choice of the name Red Bull has reference to the prophecy that such an animal will precede the arrival of our powerful Messiah”) is not based on any right or legitimate interest.

Paragraph 4(c) of the Policy provides a list of three circumstances, any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the disputed domain name. There is no evidence before the Panel of the existence of any of these circumstances in the present case. In relation to paragraph 4(c)(i) and (iii) the Respondent’s use of the disputed domain name is for commercial gain through the sale of the products offered on its website. Further, the use of the disputed domain name to attract Internet traffic to this website by deception (that is, by suggesting the website offers deals or otherwise relates to the RED BULL trademark) is not a use in connection with a bona fide offering of goods or services.

Therefore, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and used in bad faith

Paragraph 4(b) of the Policy sets out four non-exclusive circumstances any of which, if found by the Panel, shall be evidence of registration and use of a domain name in bad faith.

In particular, paragraph 4(b)(iv) states that if the Panel finds that the Respondent has used the domain name intentionally to attempt to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website, it should be taken as evidence of the registration and use of the domain name in bad faith.

The Respondent’s submission denies bad faith. However, the Respondent does not deny knowledge of the RED BULL trademark when it registered the disputed domain name. To the contrary, it appears that the Respondent knew of the RED BULL trademark, but considered that the Complainant’s rights were invalid or capable of legal challenge. The Respondent states that it has filed a court action against the Complainant, but gives no details regarding the basis for its suit.

The Respondent’s own evidence, the international reputation and goodwill of the RED BULL trademark, and the choice of the suffix ‘deals’ emphasising the trademark function of ‘redbull’, indicate that the Respondent’s choice of domain name was made with prior knowledge of the Complainant’s trademark. The Panel concludes that the deliberate choice of a widely-known trademark for a commercial website was with the intention or expectation of financial profit. Even though Internet users, after arriving at the Respondent’s website as a result of the deceptive domain name, may subsequently realise on browsing the website that it is a consumer goods site unrelated to the Complainant’s famous energy drink, nevertheless the Respondent increases his website traffic, and potential earnings, through the Complainant’s reputation and consumer deception.

On this basis, and notwithstanding the Respondent’s denial, the Panel finds that the evidence establishes bad faith registration and use under paragraph 4(b)(iv). The Respondent registered and is using the disputed domain name intentionally to attract, for commercial gain, Internet users to its own website by creating a likelihood of confusion that the website has some connection with the Complainant’s trademark as to source, sponsorship, affiliation or endorsement, when in fact there is no such connection.

Accordingly, the third element of the Policy is also satisfied.

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 <redbulldeals.com> be cancelled.

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David J.A. Cairns
Sole Panelist

Dated: July 24, 2007