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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AstraZeneca PLC v. Lorna Kang
Case No. D2003-0303
1. The Parties
The Complainant is AstraZeneca PLC, London, United Kingdom of Great Britain and Northern Ireland, represented by Helen Aydogan Asker of United Kingdom of Great Britain and Northern Ireland.
The Respondent is Mr. Lorna Kang, Perak, Malaysia.
2. The Domain Name and Registrar
The disputed domain name is <astrazenica.com>.
It is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 17, 2003. On April 17, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On April 19, 2003, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its 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 April 28, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was May 18, 2003. The Respondent was informed that if his response was not received by that date, he would be considered in default. The Center would still appoint an Administrative Panel to review the facts of the dispute and to decide the case. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 23, 2003.
The Center appointed Dr. Vinod K. Agarwal as the sole panelist in this matter on June 12, 2003. 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. The Administrative Panel is required to give its decision by June 26, 2003.
4. Factual Background
From the Complaint and the various annexures to it, the Administrative Panel has found the following facts:
The Complainant was formed on April 6, 1999, following the merger of Astra AB of Sweden and Zeneca Group PLC of the UK. By combining these two words, the trademark ASTRAZENECA was formed. Astrazeneca is one of the five largest pharmaceutical companies in the world. The Complainant is the owner of the trademark ASTRAZENECA. The trademark ASTRA was registered in 1992 in the USA and ZENECA was registered in 1999, in the UK. The said trademark is associated with pharmaceuticals in the field of human medicine, agrochemicals and specialty chemicals. The registration for the said trademark was applied on December 9, 1998, and was granted on December 17, 2002, by the United States of America Patents and Trademark Office. The said trademark is also registered in many other countries, including Malaysia, Argentina, Chile, Indonesia, Israel, Mexico, Namibia, Panama, Saudi Arabia, Taiwan, South Africa, etc.
Respondent’s identity and activities
The Respondent did not reply to the Complainant’s contentions. Hence, the Respondent’s activities are not known.
5. Parties’ Contentions
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Uniform Policy are applicable to this dispute.
In relation to element (i), the Complainant contends that it is the owner of the registered trademark "ASTRAZENECA" in respect of pharmaceuticals. The Complainant registered the domain name <astrazeneca.com> on December 8, 1998. It is the corporate international site of the Complainant. The Respondent has registered the domain name with a minor modification of the said word by changing "e" to "i".
In relation to element (ii), the Complainant contends that the Respondent (as an individual, business, or other organization) has not been commonly known by the domain name <astrazenica.com> as the Respondent is known as "Lorna Kang". The domain name <astrazenica.com> is not a descriptive word in which the Respondent may have a genuine interest. The Respondent is making no use of the domain name in connection with a bona fide offering of goods or services. Further that the Respondent is not making a legitimate non-commercial or fair use of the said domain name. The Respondent registered the domain name for the sole purpose of selling the same or misleading and misdirecting the public.
Regarding the element at (iii), the Complainant contends that the main object of registering the domain name <astrazenica.com> by the Respondent is to sell it to the Complainant or to mislead the general public.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The present dispute pertains to the domain name <astrazenica.com>. The Complainant is the registered owner of the trademark ASTRAZENECA in many countries, including the United States of America. The said trademark ASTRAZENECA has been used in the domain name of the Respondent with a very minor variation. The two names, "astrazenica" and ASTRAZENECA are almost identical and confusingly similar in appearance and pronunciation. It has been held by the Administrative Panels in the past cases that addition, deletion or change of one letter from the trademark of the Complainant will not alter the nature of the domain name. In Estee Lauder Inc. v. estelauder.com, WIPO Case No. D2000-0869, the Panel compared the respondent’s domain name <estelauder.com> with the complainant’s trademark Estee Lauder and came to the conclusion that the absence one "e" was the only difference and concluded that the respondent's domain name is "confusingly similar to the Complainat's mark". Similar conclusions have been arrived at by the Administrative Panels in the cases of Pharmacia & Upjohn AB v. Dario H. Romero, WIPO Case No. D2000-1273 ("pharmacia" and "pharmaciae") and Briefing.com Inc. v. Cost Net Domain Name Manager, WIPO Case No. D2001-0970. Thus, there is no doubt that the domain name is confusingly similar to the trademark of the Complainant. The Administrative Panel finds that the domain name is confusingly similar to the registered trademark of the Complainant.
B. Rights or Legitimate Interests
According to Paragraph 4(c) of the Policy, the Respondent may demonstrate its rights to or legitimate interest in the domain name by proving any of the following circumstances:
(i) before any notice to the Respondent of the dispute, the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) the Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent has not filed any response in this case. Based on the evidence in the Complaint, it is presumed that the above circumstances do not exist in this case and that the Respondent has no rights or legitimate interests in the disputed domain name. See also Pavillion Agency Inc. et al v. Greenhouse Agency Ltd. et al, WIPO Case No. D2000-1221. "ASTRAZENECA" is the registered trademark of the Complainant. It is evident that the Respondent can have no legitimate interest in the domain name. Further, in view of the fact that the Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for or use the domain name incorporating said trademark and that nobody would use the word "ASTRAZENECA" unless seeking to create an impression of an association with the Complainant, the Administrative Panel finds that the Respondent has no rights or legitimate interests in the domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration or use of the domain name in bad faith:
(i) Circumstances indicating that the Respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) The Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that it has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, internet users to its web site or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location or of a product or service on its web site or location.
The contention of the Complainant is that the present case is covered by the first circumstance. In response to an e mail sent by the Complainant to the Resondent, the Complainant received the following reply from the Respondent, "Hello! Registrant agree to transfer this domain to You. He asks $ 1000. Admn." However, no reply was received to two subsequent e mails of the Complainant. Thus, the Respondent is only interested in selling the domain name. This and other information submitted by the Complainant leads to the presumption that the said domain name was registered and used by the Respondent in bad faith. The Administrative Panel agrees with the said contention of the Complainant and concludes that the registration of the said domain name amounts to the registration and use of the domain name in bad faith.
In the light of the forgoing findings, namely, that the domain name is confusingly similar to the trademark or service mark in which the Complainant has a right, that the Respondent has no rights or legitimate interests in respect of the domain name, and that the domain name was registered in bad faith and is being used in bad faith, the Administrative Panel directs that the domain name <astrazenica.com> be transferred to the Complainant.
V. K. Agarwal
Dated: June 26, 2003