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WIPO-UDRP Entscheid
D2008-1077

Fallnummer
D2008-1077
Kläger
Red Bull GmbH
Beklagter
Premiere-PTC-Network
Entscheider
Narayanswamy, Harini
Betroffene Domain(s)
Status
Geschlossen
Entscheidung
Cancellation

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Red Bull GmbH v. Premiere-PTC-Network

Case No. D2008-1077

1. The Parties

The Complainant is Red Bull GmbH, of Austria, represented by Drzewiecki, Tomaszek & Wsplnicy Spolka Komandytowa, Warsaw, Poland.

The Respondent is Premiere-PTC-Network, Indiana, of United States of America.

2. The Domain Name and Registrar

The disputed domain name <redbullclicks.info> is registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 15, 2008. On July 16, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain name at issue. On July 16, 2008 GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the 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 July 23, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was August 12, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 13, 2008.

The Center appointed Harini Narayanswamy as the sole panelist in this matter on August 22, 2008. 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 Red Bull GmbH, an Austrian company and the producer of the energy drink RED BULL. The Complainant has promoted the RED BULL trademark and the device of two fighting bulls through extensive advertisements and promotions since its launch in 1987.

The Complainant is the owner of numerous trademark registrations for RED BULL and has provided a representative listing of its community and other trademark applications.

Application Number

Priority Date

AT 150 540

September 7, 1993

CTM 52787

April 1, 1996

CTM 52803

April 1, 1996

IR 612320

September 7, 1993

IR 641478

September 1, 1994

US 2494093

October 2, 2001

US 3086964

May 2, 2006

US 3092197

May 16, 2006

The Complainant invests in extensive media promotion of its mark and also sponsors numerous sporting activities. Some of these are, Formula One Circuit /Racing, RED BULL RACING and, FC RED BULL SALSBURG. It is the sponsor of the major League soccer team RED BULL NEW YORK. The RED BULL AIR RACE WORLD SERIES is televised worldwide, and the RED BULL X- Fighters attract thousands of spectators. Other events organized by the Complainant include the RED BULL FLUGTAG event, where competitors attempt flying homemade machines. The RED BULL MUSIC ACADEMY was started in 1998 in Berlin and is established in major cities worldwide.

The Complainant’s main website “www.redbull.com”, receives a high volume of hits and provides information regarding its sporting events. The Complainant also owns several domain names in various countries and other top level domains. The Complainant’s promotional activities include retail displays, direct distribution of sales folders, leaflets, samples and clothes.

The Respondent is Premiere-PTC-Network of the United States of America .The Respondent registered the disputed domain name <redbullclicks.info>, on March 8, 2008 and the domain name registration is valid through at least March 8, 2009.

The website linked to the domain name displays the picture of an animated bull on the banner and the face of a red colored bull on the main page. The website advertises that users get paid to click, to read links, and to sign up. The website also has featured links and featured advertisements.

5. Parties’ Contentions

A. Complainant

The Complainant states that it is the largest worldwide producer of energy drinks. Its product RED BULL is sold in 145 countries with sales figures crossing 3.5 billion units in the year 2007. The Complainant states that its initial media expenses in 1987, were about EUR 57,000. The figure increased to over EUR 200 million in the year 2007, where its worldwide expenditure is EUR 1.2 billion, including its media expenditure.

With its numerous promotional activities, the Complainant asserts its mark is famous in Austria and well-known in many countries. Studies conducted in the year 2003 in Germany and Austria have shown that 83.7% and 90% of the general public spontaneously associate the mark with the RED BULL energy drink.

The Complainant states its famous mark RED BULL has been misappropriated by the Respondent in the disputed domain name. The Complainant further alleges that the Respondent uses the website for displaying sponsored pay-per-click links to market other third party websites not related to the Complainant.

The Complainant requests for cancellation of the disputed domain name on the following grounds.

(i) The domain name is identical or confusingly similar to the Complainant’s mark.

The Complainant states that its business has used the RED BULL mark since its launch in 1987 and internationally from 1994. The Complainant owns several trademark registrations or pending applications in 202 countries covering 45 trademark classes.

The reputation of the RED BULL mark is recognized by UDRP Panels in cases such as Red Bull GmbH v. PREGIO Co. Ltd, WIPO Case No. D2006-0909 and Red Bull GmbH v. Web Wax Designer, WIPO Case No. D2006-0746. Although the words “red” and “bull” are ordinary descriptive words, it was observed that the combination RED BULL is distinctive of the energy drink sold by the Complainant in, Red Bull GmbH v. Tony Marelli, WIPO Case No. D2001-0522 and Red Bull GmbH v. Grey Design, WIPO Case No. D2001-1035.

The Complainant asserts that RED BULL is the prominent part of the domain name, and is confusingly similar to its mark. Further, the word “clicks” is a common term which does not diminish the impression of confusing similarity. The Complainant cites cases where the addition of a word to its mark was found to be confusingly similar.

The Complainant argues that the content of the website linked to the domain name is irrelevant in finding confusing similarity. The Complainant cites Arthur Guinness Son & Co.(Dublin)Limited v. Dejan Macesic, WIPO Case No. D2000-1698 and the consensus view of WIPO panelists in this regard.

(ii) The Respondent has no rights and legitimate interests in the domain name.

The Complainant alleges the Respondent’s lack of rights and legitimate interests, firstly because the Complainant has not licensed or permitted the Respondent to use its trademarks. Secondly, RED BULL is a fanciful mark, and as such, the term can only signify the Complainant’s mark. Thirdly, the Respondent is not commonly known by the domain name and is using it illegally. Fourthly, none of the paragraph 4(c) factors under the Policy favoring the Respondent are present. Lastly, given the fame of the RED BULL mark, the domain name was registered to deliberately mislead Internet users.

The disclaimer, which is seen the bottom of the Respondent’s webpage is ineffective, asserts the Complainant, as it can be viewed only after users have already been misled and lured to the webpage by the domain name.

(iii) The disputed domain name was registered and is being used in bad faith.

The Complainant contends that the use of the well-known RED BULL trademark in the domain name it is a strong indication of bad faith registration and use, as the Respondent has no connection to the Complainant. The Complainant also claims that the domain name was registered to disrupt the Complainant’s business.

Citing the Guinness case supra, the Complainant alleges bad faith registration as the Respondent must have known of the Complainant’s mark. Further, it states, the domain name is being used in bad faith, to intentionally mislead Internet users to the Respondent’s website, in the belief that they are visiting the Complainant’s website.

B. Respondent

The Respondent did not file a response or otherwise reply to the Complainant’s contentions.

6. Discussion and Findings

The Policy requires the Complainant in a domain name dispute to consecutively establish three aspects elucidated in paragraph 4(a). These are:

(a) The domain name registered by the Respondent is identical or confusingly similar to a mark in which the Complainant has rights; and

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

(c) The domain name was registered and is being used in bad faith by the Respondent.

A. Identical or Confusingly Similar

The Policy paragraph 4(a)(i), requires the Complainant to establish that the domain name registered by the Respondent is identical or confusingly similar to a mark in which it has rights.

The Complainant has provided abundant evidence of its ownership and rights in the RED BULL mark which predates the registration of the domain name by more than two decades. The Complainant has shown registered rights in several jurisdictions to demonstrate the international fame of its mark. The Complainant has highlighted its numerous promotional activities including the sponsorship of some of the foremost sports events to publicize its mark. The Panel finds that the RED BULL mark in which it clearly has rights, is distinctive of the Complainant’s energy drink.

The Panel agrees with the Complainant that the use of its mark with a generic (in this context) word does not reduce confusing similarity. The Complainant has cited previous cases where its trademark used along with a generic word in a domain name was found confusingly similar to its mark. These cases are, Red Bull GmbH v. Domains by Proxy/New Goldmine, WIPO Case No. D2007-0684, (regarding <redbullgames.com>); Red Bull GmbH v. Emory Virgil, WIPO Case No. D2005-0381 (regarding <redbullcasinos.biz>); and Red Bull GmbH v. Madhumal K Durganand, WIPO Case No. D2007-1613 (pertaining to <redbullhouses.com>).

In the present case the word “clicks” in the domain name along with RED BULL mark appears to be an intentional use of the Complainant’s mark to create a likelihood of confusion. Given the fame of the Complainant’s mark, the Panel finds the addition of the word “clicks” does not distinguish the Respondent’s domain name from the Complainant’s mark.

Panels in previous cases have also held that the word “click(s)” does not by itself distinguish a the domain name from a Complainant’s mark. See for instance, Corbis Corporation v. RegisterFly.com/Whois Protection Service/surf advertising company/ Joseph, Graham, WIPO Case No. D2006-0546 regarding <corbisclicks.com> and Xuxa Promoes e Produes Artisticas Ltda.v. BlessHost Internet, WIPO Case No. D2007-0979 concerning the domain name <clickxuxa.com>.

The Panel finds the domain name is confusingly similar to the Complainant’s trademark as required under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant must establish a prima facie case that the Respondent lacks rights or legitimate interests in the domain name, under paragraph 4(a)(ii) of the Policy.

The Complainant has not licensed or otherwise permitted the Respondent to use its trademark or its variations in the domain name. Further, there is nothing on record to suggest that the Respondent has any authorization to use the mark.

There is no evidence to show that the Respondent has been commonly known by the domain name or that it is using the domain name in connection with a bona fide offering of goods or services. Given the fame of the Complainants mark as established by previous panels, it is inconceivable that based on the facts of record, a domain name using such a well-known trademark can establish rights or legitimate interests in the domain name.

Based on the an assessment of the evidence, the Panel finds that adoption of the mark by a party not connected with the Complainant, is with an intention to derive advantage from Internet user confusion. Such use is not legitimate, and does not confer any rights or legitimate interests on the Respondent.

The use of a disclaimer by the Respondent, in the present case, also gives it no rights or legitimate interests in the domain name. The Panel finds the use of a disclaimer on the Respondent’s website, does not condone the blatant use of a well-known trademark.

The Panel finds the Respondent lacks rights and legitimate interests in the domain name and that the Complainant has fulfilled the requirements under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Complainant has to prove that the Respondent has registered and is using the domain name in bad faith. The Panel finds the following factors in the present case support the arguments put forward by the Complainant that show such bad faith:

The Complainant’s mark is well-known worldwide and is associated with its energy drink. Intrinsically the RED BULL mark is a fanciful mark. The Respondent’s use of the term “red bull” in the domain name strongly suggests that it is unlikely that the Respondent registered the domain name <redbullclicks.info> without knowledge of the Complainant’s mark. Further, the disclaimer placed by the Respondent on the website clearly shows his knowledge of the Complainant’s mark.

The RED BULL mark has been the target of many cybersquatters in the past, which is due to the prominence and fame of the mark. The public associates the mark RED BULL with the Complainant’s energy drink. The Panel is convinced that the Respondent has used the term “red bull” in the domain name to attract Internet traffic due to the fame of the mark. The adoption of the mark by the Respondent suggests it was with an intention is to seek a false association with the Complainant’s well- publicized mark.

The Panel observes that the word “click” is synonymous with commercial revenue earnings in Internet terminology. Phrases like “click-through-revenues” and “click-through-links” commonly use the term “click” to connote revenue earnings. Further, the Respondent’s web site announces that users are paid “one cent per click”. Using the Complainant’s mark this manner shows the Respondent is exploiting the Complainant’s mark for commercial gain, such use has been found to be indicative of bad faith use in numerous decisions.

The Panel finds the Complainant’s arguments convincing that there are reasonable grounds in the present case, to find the domain name was registered with a view of creating a variant of the Complainant’s famous mark to mislead Internet users. The Panels holds such registration and use of the domain name is in bad faith under paragraph 4(a)(iii) of the Policy.

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 <redbullclicks.info> be cancelled.

Harini Narayanswamy
Sole Panelist

Date: September 5, 2008