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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Boiron S.A. v. Josй Antonio Paya Serer
Case No. D2001-0118
1. The Parties
Complainant is Boiron S.A. ("Complainant"). Respondent is Mr. Josй Antonio Paya Serer ("Respondent").
2. The Domain Name and Registrar
The domain name the subject of this Complaint is <boiron.net>.
The Registrar is Network Solutions, Inc. The remedy sought by Complainant is transfer of the domain name <boiron.net> to Complainant.
3. Procedural History
On January 22, 2001, (by e-mail) and January 25, 2001, (in hard copy), Complainant submitted to the WIPO Center a Complaint under the Uniform Policy and the Uniform Rules. The Panel agrees that payment was properly made, that the Center rightly assessed the Complaint’s compliance with the formal requirements; that Complaint was properly notified in accordance with paragraph 2 (a) of the Rules. On March 28, 2001, Respondent was declared in default. The Panel agrees that it was properly constituted and that Panelist submitted a Statement of Acceptance and Declaration of Impartiality. The Panel also acknowledges that no other proceedings are pending before any Justice Court.
4. Factual Background
Complainant is the owner of the trademark BOIRON, registered in a number of countries for medical products. That BOIRON is a famous trademark in the field of medical products (particularly homeopathic) is beyond dispute.
Respondent, Mr. Josй Antonio Payar Serer (Valencia, Spain), has registered its domain name <boiron.net>, without dispute, well after trademark rights from the name BOIRON were acquired by Complainant, and has no known connection with any activity or trade carried out under the trade name or trademark BOIRON. On the other hand, Mr. Paya Serer is a direct competitor of Complainant, being active in the same field of homeopathic medicine. When <boiron.net> is typed in a browser, the visitor is forwarded to a Spanish pornographic site.
5. Parties’ Contentions
a. Complainant claims that it is owner of the well-known and largely used BOIRON trademark for a number of medical homeopathic products.
b. Complainant claims that the domain name <boiron.net> has been registered by Respondent in bad faith. Respondent could not ignore Complainant’s trademark rights, nor has Respondent any rights or legitimate interests in respect of the domain name.
c. Complainant claims that the domain name <boiron.net> has been, or is being, used by Respondent in bad faith, particularly by directing visitors to a pornographic site, in order to disparage Complainant’s business.
a. Respondent is in default and, accordingly, has not challenged the conclusions of Complainant.
6. Discussion and Findings
A. General Principles
Under Paragraph 4 (a) of the Policy, the Panel should be satisfied that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the domain name;
(iii) the domain name has been registered in bad faith;
(iv) the domain name is being used in bad faith.
B. Confusion with Complainant’s Trademark
The Panel finds that Complainant has established that it is the owner of the trademark BOIRON for medical homeopathic products. The validity of its trademarks is beyond dispute. Respondent’s domain name is identical to Complainant’s trademark.
C. Respondent’s Absence of Rights or Legitimate Interests in the Domain Name
There is no evidence that Respondent has any right or legitimate interest whatsoever in respect of a domain name including the well-known trademark BOIRON. On this point also, Complainant prevails.
D. Registration in Bad Faith
Respondent, when registering the domain name, should have been aware that BOIRON was a trademark associated with the sale of Complainant’s products. Respondent is active in the same field (homeopathic products), a field where BOIRON is among the most famous trademarks in the world, if not the most famous. When it may be presumed that "the Respondent (…) knew of the renown of the Complainant’s trademarks", a finding of "opportunistic bad faith" is in order (Banca Sella S.p.A. v. Mr. Paolo Parente, case no. D2000-1157: here, the Panel found that Respondent, as "an Italian citizen" could not have ignored that BANCA SELLA is a famous trademark in Italy for banking services). In Veuve Cliquot Ponsardin v. The Polygenix Group Ltd., case no. D2000-0163, the Panel noted that "<veuvecliquot.org> is so obviously connected with such a well-known product [VEUVE CLIQUOT champagne] that its very use by someone with no connection with the product suggests opportunistic bad faith." In Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, case no. D2000-0226, it was also suggested that "the Domain Names are so obviously connected with such a well-known name and products that its very use by someone with no connection with the products suggests opportunistic bad faith [quoting Veuve Cliquot]. In the absence of contrary evidence, the Panel finds that Respondents knew of or should have known of the Complainant’s trademark and services at the time Respondents registered the Domain Names given the widespread use and fame of the Complainant’s CHRISTIAN DIOR mark ." Even in a case where the trademark involved (EXPEDIA for online travel services) was somewhat less famous than VEUVE CLIQUOT or CHRISTIAN DIOR, it was decided that "the Respondent knew of or should have known of the Complainant’s trademark and services at the time it registered the domain name <xpediatravel.com>, given the widespread use of the Complainant’s EXPEDIA website" (Expedia, Inc. v. European Travel Network, case no. D2000-0137.) Here, not only is BOIRON a well-known trademark in its field, but Respondent is active in the same field of Complainant.
The Panel concludes that the domain name has been registered in bad faith.
E. Use in Bad Faith
Complainant states that the domain name is being used in bad faith. In fact, the only "use" of the domain name is for forwarding or routing visitors to a Spanish pornographic Web site. This surely disparages Complainant’s business, and less than this has been regarded as "use" in previous cases decided under the Policy.
The Panel concludes that the domain name <boiron.net> is used by Respondent, and is used in bad faith.
Pursuant to Paragraph 4 (i) of the Policy and Rule 15 of the Uniform Rules, this Panel orders that the domain name <boiron.net> be transferred to Complainant.
Dr. Massimo Introvigne
Dated: May 2, 2001