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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Sanofi-aventis v. US Online Pharmacies

Case No. D2006-0582

 

1. The Parties

The Complainant is Sanofi-aventis, Gentilly Cedex, France, of France, represented by Bird & Bird Solicitors, France.

The Respondent is US Online Pharmacies, Fontana, California, United States of America.

 

2. The Domain Names and Registrars

The disputed domain names;

<ambienonlinepharmacy.com>
<ambienpharmacy.com>
<ambiensonata.com>
<buyambiens.com>
<eambien.com>
<online-ambien.com>
<onlineambien.com>

are registered with Go Daddy Software and DomainBuzz.ca Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 9, 2006. On May 9 and May 10, 2006, the Center transmitted by email to Go Daddy Software and NameScout Corp. respectively a request for registrar verification in connection with the domain names at issue. On May 10, 2006, Go Daddy Software and NameScout Corp. transmitted by email to the Center their verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 May 12, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June 1, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 2, 2006.

The Center appointed Arne Ringnes as the sole panelist in this matter on June 8, 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

The Complainant is a company active in the pharmaceutical market and one of the largest pharmaceutical companies in the world.

Ambien, a product indicated for the short-term treatment of insomnia, is one of the Complainant’s flagship products and the leading prescription sleep aid in the USA.

The Complainant owns a large number of AMBIEN trademarks in more than 50 countries, including the USA.

Further, the Complainant has registered a number of domain names worldwide containing AMBIEN, including <ambien.us>; <ambien.co.uk>; <ambien.net> and <ambien.biz>.

 

5. Parties’ Contentions

A. Complainant

The Complainant submits that the disputed domain names are confusingly similar to the Complainant’s trademark AMBIEN. According to the Complainant, the addition of the generic words, “pharmacy”, “online”, “buy”, “e”, or competing products such as “sonata” and the gTLD “.com” does not change the overall impression of the disputed domain names as being connected to the Complainant.

The Complainant alleges that the Respondent has no rights or legitimate interest in respect of the disputed domain names. The Complainant further alleges that there exists no license, consent or other right by which the Respondent would have been entitled to register or use the domain names incorporating the Complainant’s AMBIEN trademark.

The Complainant submits that the Respondent has registered the disputed domain names with the intention to divert consumers and to prevent the Complainant from reflecting its mark in corresponding domain names.

According to the Complainant the disputed domain names are registered and used in bad faith, for i.e. the following reasons:

1. the Respondent has no prior rights and no authorization given by the Complainant concerning the AMBIEN trademark;

2. the Respondent’s awareness that AMBIEN is one of the leading prescription sleep aids in America;

3. the composition of different words and AMBIEN misleads Internet users to believe that the domain names contain the official web sites of the Complainant;

4. the domain name <ambiensonata.com> is composed of the trademark AMBIEN and a competing pharmaceutical product SONATA;

5. the Respondent has already registered domain names that infringed the Complainant’s rights as the address email of the Respondent. This is so as the Respondent’s e-mail address is identical to the e-mail address used by a company called USMEDS, which was ordered by the Panel to transfer all their domain names to the Complainant in Sanofi-Aventis v. Us-Meds, WIPO Case No. D2004-0809.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel finds that the disputed domain names are confusingly similar with the Complainant’s trademark AMBIEN. The disputed domain names incorporate the Complainant’s trademark completely. The addition of the terms “onlinepharmacy”, “pharmacy”, “sonata”,“buy”, “online” and the letter “e” does not imply that the domain names are distinguished from the trademark AMBIEN with the effect that confusion is avoided. On this point the Panel refers to the previous decisions under the Policy, i.e. the panel’s observations in Sanofi-Aventis, v. US-Meds.com, WIPO Case No. D2004-0809:

“The domain names in dispute are comprised of the Complainant’s trademark ACOMPLIA preceded or followed by generic words used in the trade such as “buy,” “store,” or “online” or common words used in the medical market such as “pills,” “drug,” “generic” and “pharmacy” and the gTLDs “.com” or “.net.” The Complainant holds a number of valid registrations for the ACOMPLIA trademark.

The use of the above noted generic terms in conjunction with the Complainant’s trademark ACOMPLIA does not remove the domain names in dispute from being confusingly similar, as the generic terms lack distinctiveness.”

In conclusion, the Panel finds that the Complainant has proved that the requirement of paragraph 4(a)(i) of the Rules has been met.

B. Rights or Legitimate Interests

The Respondent has not contested the Complainant’s allegation that the Respondent lacks rights or legitimate interests in the contested domain name.

It is generally difficult for the Complainant to prove that the Respondent does not have any rights or legitimate interests in the domain name at issue. On the other hand, it would be fairly simple for the Respondent to demonstrate that it has such rights or legitimate interests pursuant to paragraph 4(c) of the Policy. Previous decisions under the Policy have therefore found it sufficient for a complainant to make a prima facie showing of its assertion in the event of a respondent’s default.

The basis for the Panel’s decision is that the Complainant has not granted the Respondent any rights to use its mark, and that it is in no way affiliated with the Respondent. The Panel finds that the circumstances mentioned and evidenced by the Complainant are sufficient to establish a prima facie showing that the Respondent has no rights or legitimate interests in the domain name at issue.

As the Panel cannot find any indications of the three circumstances that constitute rights to or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy or any other circumstances indicating such rights or legitimate interests in the case file, the Panel concludes that the Respondent does not have any rights or legitimate interests in respect of the domain name at issue.

C. Registered and Used in Bad Faith

The Panel has considered the Complainant’s assertions and evidence with regard to the Respondent’s registration and use of the domain name in bad faith. By not submitting a Response, the Respondent has failed to invoke any circumstances that could demonstrate that the Respondent did not register and use the domain name at issue in bad faith.

The Panel finds it unclear whether the Respondent is identical to the respondent in Sanofi-Aventis v. Us-Meds, WIPO Case No. D2004-0809, or not. It is, however, not necessary for the Panel to consider this any further.

As a result of the worldwide fame of the Complainant’s trademark AMBIEN, the Panel finds it inconceivable that the Respondent should not have been aware of the Complainant’s rights when registering the domain names at issue.

In particular, the Respondent’s registration of the domain name <ambiensonata.com>, which is composed of the trademark AMBIEN in additions to the competing pharmaceutical product SONATA, indicates that the Respondent was aware of the Complaint’s rights with respect to AMBIEN. For the sake of good order, the Panel emphasizes that it has not considered the rights to SONATA in this case.

On the foregoing reasons, the Panel finds that the Respondent could not have been unaware that the registration of the disputed domain names would infringe upon the Complainants’ rights.

The Panel further finds, in accordance with previous decisions under the Policy, that bad faith inaction, resulting from failure to provide an active website, amounts to use in bad faith when all the surrounding circumstances point to registration and use in bad faith (Revlon Consumer Products Corporation v. Domain Manager, PageUp Communications, WIPO Case No. D2003-0602; Telstra Corporation Limited v. Nuclear Marshmallows Limited, WIPO Case No. D2000-0003).

For the various reasons discussed above, the Panel finds that the Respondent has registered and used the domain names in dispute in bad faith.

 

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 names:

<ambienonlinepharmacy.com>
<ambienpharmacy.com>
<ambiensonata.com>
<buyambiens.com>
<eambien.com>
<online-ambien.com>
<onlineambien.com>

be transferred to the Complainant.


Arne Ringnes
Sole Panelist

Date: June 23, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0582.html

 

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