The owners of the Red Bull brand were not impressed by third party-owned domain names “betterthenredbull.com” and “betterthanredbull.com”. They were positively raging to discover these were links to sites advertising a competitor. Jessica Stretch reports the WIPO verdict.
Who: Red Bull GmbH v Russell Snyder
Where: WIPO Arbitration and Mediation Centre
When: 14 August 2007
Law stated as at: 28 September 2007
Red Bull GmbH (the "Complainant") filed a complaint with WIPO pursuant to its Uniform Dispute Resolution Procedure. The Complainant contended that the domain names betterthanredbull.com and betterthenredbull.com (the "Domain Names") were confusingly similar to the Complainant's registered trade marks for RED BULL and that the Respondent had no legitimate interests in the Domain Names which had been registered and used in bad faith. The Respondent had used the Domain Names to link to a website advertising a rival soft drink.
Both parties argued that the Domain Names were analalagous to the "sucks" cases i.e. those cases where the domain name at issue consistes of a trade mark but has the word "sucks" or some other critical term as a prefix or suffix. However, the WIPO panellist held that the expression "better than" was not pejorative and therefore would not alert the public to the fact that the domain name was not associated with Red Bull.
The WIPO panellist also considered the fact that the Red Bull drink was sold in many non-English-speaking countries where people would be unlikely to know the meaning of "better than" or "better then" although they would recognise the RED BULL trade mark. Consequently the panellist found that the Domain Names were confusingly similar to the Complainant's registered trade marks.
The WIPO panellist also found that the Domain Names did not link to a legimiate website criticising the Red Bull brand but instead linked to a promotion of the Respondent's competitor drinks. As such the Respondent had no legitimate interest in the Domain Names which had been registered in bad faith for commercial purposes. Accordingly the Domain Names were transferred to the Complainant.
Why this matters:
This case provides an interesting variation on the more usual "brandnamesucks" domain name cases, which involve more obviously pejorative terms that are less likely to be associated with the relevant brand. Brandowners should be aware of the impact of this decision on comparative advertising: incorporating a competitors' trade mark into a domain name for commercial purposes is likely to be deemed a bad faith registration.