Red Bull Gets Back Its Wings

The Complainant, Red Bull GmbH, is a producer of energy drinks.  The Complainant holds an internationally registered trademark for a drink sold under the trademark RED BULL.  The Complainant first used its trademark in 1987 and since 1994 has made extensive international promotion and sale of its goods bearing the trademark.  The Respondent registered its domain name, www.redbullsucks.com, on April 19, 2007.

The Complainant alleged that the disputed domain name is confusingly similar to its registered trademark.  However, the Respondent claimed the disputed domain name was in protest of the harmful effects of energy drinks.  Ultimately, the Panel ordered the transfer of the disputed domain to the Complainant after finding that the Respondent violated the Complainant’s trademark rights in registering and using the domain in bad faith for commercial purposes.

Interestingly, the Panel rejected the Complainant’s argument that the term ‘sucks’ was a generic term and that the addition of the word ‘sucks’ to its trademark rendered it inherently confusing.  The Panel held that the term ‘sucks’ was widely known as an insult and “those people who have no appreciation of the pejorative nuance of the word ‘sucks’ form such an inappreciable part of the modern Internet audience that concern for their sensibilities should not be a factor in the assessment of confusing similarity under [the] Policy.”   Nonetheless, the Panel concluded that a domain name is ‘identical or confusingly similar’ to a trademark for purposes of the Policy “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name.  In other words, the issue [is] not whether the domain name causes confusion as to source (a factor more appropriately considered in connection with the legitimacy of interest and bad faith factors), but instead whether the mark and domain name, when directly compared, have confusing similarity.” 

In this instance, the Panel found that the domain name was ‘confusingly similar’.  The Complainant alleged, the evidence showed, and the Respondent did not deny, that the Respondent’s website corresponding with the disputed domain name was being used to promote an energy drink in competition with the Complainant - this was found not to be a commercial use and the evidence showed it was clearly used for commercial gain.  The Panel also found that the name was registered and used in bad faith and ordered the immediate transfer of the disputed domain name to Red Bull.  Red Bull GmbH v. Carl Gamel, WIPO Case No. D2008-0253