Westmore · UDRP DecisionRedbulleffects.com
The Panel ordered transfer of <redbulleffects.com>. It found the domain confusingly similar to the Complainant’s well-known RED BULL mark, held that the Complainant’s prima facie case on rights or legitimate interests was unrebutted, and found bad-faith registration and use based on the Respondent’s presumed awareness of the well-known mark, use of the domain for paid advertisements, and a post-notice change to content concerning “Zezengorri.”
The timeline behind redbulleffects.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind redbulleffects.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates how incorporation of a well-known mark with an added term may readily satisfy confusing similarity, while monetized use and a website change after notice can combine to support bad faith. It also shows that a panel may regard an attempted post-notice appearance of bona fide use as aggravating rather than curative.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Red Bull GmbH v. Mohammed Elhemed, Red Bull Effects Case No. D2018-0321 1. The Parties The Complainant is Red Bull GmbH of Fuschl am See, Austria, represented by Drzewiecki, Tomaszek & Wspólnicy Spólka Komandytowa, Poland. The Respondent is Mohammed Elhemed, Red Bull Effects of Mogadishu, Somalia. 2. The Domain Name and Registrar The disputed domain name <redbulleffects.com> is registered with Name.com, Inc. (Name.com LLC) (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 12, 2018, against 26 domain names not including the disputed domain name. On March 2, 2018, the Complainant filed an amended Complaint with the Center, adding four new domain names to the Complaint, including the disputed domain name. On March 5, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 5, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 8, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed a second amended Complaint on March 14, 2018. At the request of the Complainant, the administrative proceeding was suspended on March 16, 2018, and reinstituted on April 13, 2018. The Center verified that the Complaint together with the amended Complaint and second amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 17, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 7, 2018. On April 27, 2018, the Complainant filed a supplemental filing. On May 11, 2018, at the request of the Complainant, the administrative proceed was suspended. The Complainant settled with the respective registrants as to 29 domain names on May 22, 2018. At the request of the Complainant, on June 8, 2018, the administrative proceeding was reinstituted against the disputed domain name. The Center received email communications from Exclusive Names, which represented the respective registrants as to the abovementioned 29 domain names, on February 28, 2018; March 6, 2018; March 12, 2018; March 19, 2018; March 26, 2018; April 2, 2018; April 4, 2018; April 13, 2018; May 7, 2018; May 9, 2018; May 16, 2018; June 5, 2018; June 6, 2018; June 7, 2018; June 8, 2018; and June 26, 2018. In certain of these communications, Exclusive Names denied ownership of the disputed domain name. The Panel notes that WhoIs registrant information for the disputed domain name lists Mohammed Elhemed, Red Bull Effects. The Panel does not find these issues concerning the identity of the Respondent to bear upon the outcome of this case. Nor does the Panel consider it necessary to admit the Complainant’s supplemental filing to render a decision. The Center appointed Evan D. Brown as the sole panelist in this matter on June 26, 2018. 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 manufacturers and distributes, among other things, energy drinks under the well-known mark RED BULL, and owns numerous trademark registrations for the mark around the world, including United States of America Reg. No. 3092197, registered on May 16, 2006, which sets forth a date of first use in commerce of January 31, 1987. The Respondent registered the disputed domain name on February 11, 2018. For a time, until after the Complainant filed an amended Complaint to add the disputed domain name to this action, the Respondent used the disputed domain name to publish a website that contained sponsored advertisements and links offering the disputed domain name for sale. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s registered trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not substantively reply to any of the Complainant’s contentions made under the Policy. 6. Discussion and Findings According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name, the Complainant must prove each of the following, namely that: (i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant undoubtedly has rights in the mark RED BULL. The mark is among the most recognizable energy drink brands in the world, having been in widespread use for many years. The disputed domain name is confusingly similar to this mark. It contains the words comprising the mark in its entirety, accompanied by the word “effects”. This additional material (along with the generic Top-Level Domain “.com”) does not meaningfully distinguish the disputed domain name from the Complainant’s mark for purposes of the Policy. Accordingly, the Panel finds in favor of the Complainant on this first element of the Policy. B. Rights or Legitimate Interests The Complainant will be successful under this element of the Policy if it makes a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name, and if that prima facie showing remains unrebutted by the Respondent. The Complainant asserts, among other things, that (1) there is no relationship between the Complainant and the Respondent, nor is there any authorization for the Respondent to use the disputed domain name, (2) there is no indication the Respondent was known for its use of the disputed domain name, and (3) the Respondent used the disputed domain name to establish a website for establishing advertising links. These assertions establish the Complainant’s prima facie case. The Respondent has not substantively answered the Complainant’s assertions, and, seeing no basis in the record to overcome the Complainant’s prima facie showing, the Panel finds that the Complainant has satisfied this second Policy element. C. Registered and Used in Bad Faith Because the Complainant’s mark is well known, it is implausible to believe that the Respondent was not aware of that mark when it registered the disputed domain name. In the circumstances of this case, such a showing is sufficient to establish bad faith registration of the disputed domain name. Bad faith use is clear from the Respondent’s activities of previously using the disputed domain name to provide a website providing paid advertisements, and following notice of this proceeding to a page supposedly providing information on “Zezengorri”, a so-called “red bull” that breathes fire; this change to give the appearance of a bona fide use further illustrates the Respondent’s bad faith. For these reasons, the Panel finds that the Complainant has successfully met this third Policy element. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <redbulleffects.com> be transferred to the Complainant. Evan D. Brown Sole Panelist Date: July 20, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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