The Complainant is Red Bull GmbH, Fuschl am See, Austria, represented by Schönherr Rechtsanwälte OEG, Austria.
The Respondent is PREGIO Co., Ltd., Osaka, Japan.
2. The Domain Name and Registrar
The disputed domain name <redbull-jp.net> is registered with Tucows.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 18, 2006. On July 26, 2006, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On July 26, 2006, Tucows transmitted by email to the Center its verification response. 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 26, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 15, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 18, 2006.
The Center appointed Eduardo Machado as the sole panelist
in this matter on September 5, 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 the largest worldwide producer of energy drinks. It is the producer of the Red Bull energy drink, which was first sold in Austria in 1987 and internationally since 1992. Currently the Red Bull energy drink is sold in 136 countries all over the world and Complainant has sold around 2.5 billion units in 2005.
Since its launch in 1987 until 2005, Complainant has spent more than EUR 922 million in penetrating the marketplace in TV, cinema and radio. Media expenses of Complainant in 2005 amounted to EUR 158 million. Since 1997 until 2005, Red Bull has spent EUR 2.9 billion on overall marketing activities, including media expenses. In 2005, Complainant’s total marketing expenses were more than EUR 699 million.
Complainant is the registrant of a large 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, sport events sponsored by Complainant and links to other Red Bull websites, all of which are evidence of the marketing activities of Complainant in relation to its trademark RED BULL.
Complainant and its subsidiaries hold national and international trademark registrations or applications consisting of or containing the sign Red Bull in Austria and further 202 jurisdictions worldwide such as Germany, the Russian Federation, USA, Australia, Canada, Brazil, South Africa, Hong Kong, China, Taiwan, Japan and Saudi Arabia. In addition, Complainant holds various registered Community Trademark registrations or applications.
Complainant, respectively its subsidiary Red Bull
AG, also owns trademark registrations in Japan, where Respondent is located.
5. Parties’ Contentions
A. Complainant
i. Complainant argues that an essential part of its marketing activities is sponsorship of publicly covered sports events such as Formula One Racing, the motorcycle race team Red Bull Yamaha WCM, in order to attract a large public audience and to make the mark RED BULL well-known all over the world.
ii. Complainant argues that the disputed domain name integrates the trademark RED BULL in its entirety. It also argues that it is a common practice with Internet domain names that blank spaces in trade names or trademarks are omitted to form a domain name.
iii. Complainant argues that domain name <redbull-jp.net> only adds a description of geographical nature (“jp”) to the generic Top Level Domain “redbull” and that “Jp” is the commonly used shortcut and country code TLD for Japan, which is known by most Internet users. Complainant also argues that the combination of a trademark with a geographical name or abbreviation thereof is common practice for many domain names
iv. Complainant argues that Respondent has chosen to register the disputed domain name to create the misleading impression that his business is in some way associated with Complainant, which is not the case, and that Respondent is obviously trying to exploit the fame and reputation of Complainant’s trademark RED BULL.
v. Complainant argues that given the fame and reputation of the trademark RED BULL and also the activities of Complainant all over the world, it is inconceivable that Respondent had been unaware of Complainant before registering the disputed domain name. It therefore can be excluded beyond any doubt that Respondent created a fantasy name, which happened to consist of a variation of the famous trademark RED BULL.
vi. Complainant argues that Respondent’s obvious intent is to misleadingly divert consumers to his website, causing confusion among the consumers in the way of creating the impression of economic relation with or sponsorship or endorsement of his company by Complainant for commercial gain.
vii. Finally, Complainant argues that it is obvious that Respondent intentionally attempts to attract consumers to his website for commercial gain by creating confusion among the consumers regarding the source, sponsorship, affiliation or endorsement of Complainant and that these facts are evidence of bad faith registration of the disputed domain name.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel considers that the domain name <redbull-jp.net> is virtually identical and is in any case confusingly similar to Complainant’s trademark RED BULL.
The addition of “jp” is not sufficient to distinguish a mark from
its adopter. Britannia Building Society v. Britannia Fraud Prevention,
WIPO Case No. D2001-0505, “the incorporation
of a trademark in its entirety is sufficient to establish that a domain name
is identical or confusingly similar to the Complainant’s registered mark”.
In this case, the trademark RED BULL is clearly the most prominent element in
this combination, and that may cause the public to think that the domain name
<redbull-jp.net> is somehow connected with the owner of RED BULL trademark.
Moreover, the addition of a geographical term “jp” adds to the likelihood of confusion because that term falsely suggests that the Respondent sells REDBULL products in Japan.
The Panel therefore finds that the disputed domain name <redbull-jp.net> is identical or confusingly similar to Complainant’s trademark REDBULL.
B. Rights or Legitimate Interests
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name at issue as enumerated in paragraph 4(c) of the Policy.
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 thereof.
Complainant alleges that a combination of the words “red” and “bull” is purely fanciful, as red coloured bulls do not exist. Therefore, nobody would legitimately choose this combination or any variation thereof, unless seeking to create the impression of an association with Complainant. In this respect, Respondent seeks to create the false and misleading impression that he acts in affiliation with Complainant.
Complainant is in all likelihood correct in claiming that Respondent has chosen to register the disputed domain name to create the misleading impression that his business is in some way associated with Complainant, which is not the case. Respondent is in the Panel’s view quite obviously trying to exploit the fame and reputation of Complainant’s trademark RED BULL.
Therefore, the Panel finds that the second element of the Policy has been established.
C. Registered and Used in Bad Faith
The Panel notes the following particular circumstances of this case:
(i) the Complainant’s trademark has a strong reputation and is widely known all over the world;
(ii) the Respondent has provided no evidence whatsoever of any good faith use by it of the dispute domain name, is making no use of the domain name, and has not participated in this proceeding even though properly notified thereof:
In light of these circumstances, the Panel makes the reasonable inference that the Respondent was aware of the Complainant and its trademark and that the Respondent registered the disputed domain name in bad faith and is now using it to intentionally attract consumers for commercial gain within the meaning of paragraph 4(b)(iv) of the Policy.
The Panel finds that the third element of the Policy has been met.
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 <redbull-jp.net> be cancelled.
Eduardo Machado
Sole Panelist
Dated: September 19, 2006
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