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and Mediation Center
Aventis Pharmaceuticals Holdings Inc., Sanofi-Aventis, Aventis (Ireland) Ltd v. Melrose Place Aesthetics
Case No. D2006-0071
1. The Parties
The Complainants are Aventis Pharmaceuticals Holdings Inc., Sanofi-Aventis and Aventis (Ireland) Ltd, Gentilly, France, represented by Selarl Marchais De Candй, France.
The Respondent is Melrose Place Aesthetics, Los Angeles, California, United
States of America.
2. The Domain Name and Registrar
The disputed domain name <sculptrala.com> is registered with DomainPeople.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2006. On January 17, 2006, the Center transmitted by email to DomainPeople a request for registrar verification in connection with the domain name at issue. On January 20, 2006, DomainPeople transmitted by email to the Center its verification response. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 27, 2006. The Center verified that the Complaint together with the amendment to 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 January 30, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 19, 2006. The Respondent did not submit any response. Accordingly, the Center notified of the Respondent’s default on February 21, 2006.
The Center appointed Zbyněk Loebl as the sole
panelist in this matter on February 28, 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
Sanofi-aventis, a leading pharmaceutical company of which AVENTIS PHARMACEUTICALS HOLDINGS INC and AVENTIS (IRELAND) Ltd. are affiliate, offers a wide range of patented prescription drugs to treat patients with serious diseases. Sanofi-aventis has developed and sold throughout the world under the trademarks SCULPTRA a drug with demonstrated utility for restoration and/or correction of the signs of facial fat loss (lipoatrophy) in people with human immunodeficiency virus or cancer.
AVENTIS (IRELAND) owns trademarks “SCULPTRA” which is registered for international classes 5, 10 and 44 in the USA, Australia, Belize, Benelux, Denmark, France, Germany, Hong Kong, Ireland, Japan, Mexico, New Zealand, Switzerland and the UK.
Complainants have registered several domain names to present SCULPTRA product on the web. Among them are the followings:
<sculptra.com>, registered on March 23, 2002;
<sculptra.net>, registered on June 10, 2003;
<sculptra.org>, registered on June 10, 2003;
<sculptra.us>, registered on April 8, 2004;
<sculptra.fr>, registered on April 8, 2004;
<sculptra.co.uk>, registered on April 2, 2004;
<sculptra.com.mx>, registered on April 6, 2004.
All of these domain names are registered and used by their owners in connection with their activity and the trademarks above mentioned.
The Respondent has registered the domain name sculptrala.com
on February 20, 2005.
5. Parties’ Contentions
The Complainants contends the following:
The domain name <sculptrala.com> is confusingly similar to the above mentioned trademarks of the Complainants. The domain name <sculptrala.com> includes entirely the trademark SCULPTRA, which itself has no particular meaning. The domain name includes the suffix “la” placed at the end. Such suffix does not distinguish the Respondent’s domain name as it is the common abbreviation of the American city of Los Angeles, where the Respondent has his activities.
The Respondent has no legitimate interest in respect of the disputed domain name. The Complainants have neither licensed nor authorized the Respondent to use their trademarks or to apply for or use the domain name incorporating the mark SCULPTRA.
The Respondent is active in the field of cosmetic dermatology and spa treatments and is located at Los Angeles, USA. The Respondent uses the domain name <mpaskin.com> for the purpose of advertising his activities on the Internet.
The domain name <sculptrala.com> is strictly used in reference to the Complainant’s trademarks.
As the Respondent was undoubtedly aware at the time of the registration of the litigious domain name of the existence of the drugs, trademarks and domain names incorporating the term Sculptra registered by the Complainants. As the Respondent is the direct competitor of the Complainants, the Complainants contend that the Respondent has registered and is using the domain name sculptrala.com in bad faith.
The Complainants request to transfer of the domain name <sculptrala.com> to AVENTIS (IRELAND) Ltd.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel considers that the disputed domain name is confusingly similar to the trademark SCULPTRA owned by the Complainants.
The litigious domain name is a combination of the designation “sculptra” which is a registered Complainant’s trademark with the suffix “la” at the end of the domain name.
The letters “la” are well known as the abbreviation for the US
city Los Angeles, where the Respondent has its activity. This element therefore
appears to constitute only a geographic indication. See Pepsi Co. Inc. v.
QWO, WIPO Case No. D2004-0865; Parmalat
S.p.A. v. Domain Strategy Inc., WIPO Case
No. D2003-0021; Dell Computer Corporation .v. MTO C.A. and Diabetes Education
Long Life, WIPO Case. No. D2002-0363;
and Educational Testing Service v. Park Jeong Foreign Language Institute,
WIPO Case No. D2001-1064.
The domain name <sculptrala.com> is confusingly similar to the Complainant’s trademarks and domain names. The condition of the Paragraph 4(a) (i) of the Uniform Domain name Dispute Resolution Policy (the “Policy”) has been satisfied.
B. Rights or Legitimate Interests
There is no evidence that the Respondent makes non-commercial and fair use of the domain name in dispute without intention to divert consumers, as addressed under Paragraph 4(c) of the Policy. Furthermore, there is no evidence that the Respondent has any connection or affiliation with the Complainant.
No one from the group Sanofi-Aventis has consented to the Respondent’s
use of the trademark or the registration of any domain name incorporating the
term SCULPTRA in its entirety. See Pepsi Co. Inc. v. QWO, WIPO
Case No. D2004-0865.
In addition the Complainant’s evidence shows that the Respondent uses a different domain name <mpaskin.com> for his commercial purposes.
Panel concludes that the Respondent has no rights or legitimate interests in respect to the disputed domain name, as set forth in the Paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Respondent has registered a domain name that includes entirely Complainant’s trademark, even though it is likely that he knew of prior Complainant’s trademark, domain names and products.
It appears that the Respondent benefits from the fame of the Complainant’s trademark and intentionally attracts Internet users to his website for commercial gain and creates confusion for consumers as to the Complainant’s trademarks as contemplated by Paragraph 4(b)(iv) of the Policy.
Furthermore the Respondent has chosen not to respond to the Complaint and not
to submit any explanation; this may support an inference of bad faith registration
and bad faith use based on relevant circumstances. See The Hongkong and Shanghai
Banking Corporation Limited v. Bill Lynn, WIPO
Case No. D2001-0915.
In light of the above, and considering that no evidence
has been provided by the Respondent supporting a finding of legitimate and fair
use of the domain name, the Panel finds that the disputed domain name has been
registered and is being used in bad faith.
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, <sculptrala.com> be transferred to the Complainant AVENTIS (IRELAND) Ltd.
Dated: March 20, 2006