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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

F. Hoffmann-La Roche AG v. Cheaptamiflu.net

Case No. D2005-1256

 

1. The Parties

The Complainant is F. Hoffmann-La Roche AG, Basel, Switzerland, represented by an internal representative.

The Respondent is Cheaptamiflu.net, Web Admin, Kingston, Jamaica.

 

2. The Domain Name and Registrar

The disputed domain name <ordertamiflunow.com> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 6, 2005. On December 6, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On December 7, 2005, eNom 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 December 9, 2005. In accordance with the Rules, paragraph 5(a), the due date for the Response was December 29, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 3, 2006.

The Center appointed Knud Wallberg as the sole panelist in this matter on January 16. 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 and its affiliated companies are a healthcare group operation in the field of pharmaceuticals and diagnostics. The Complainant has operations in more than 100 countries worldwide.

The Complainant is the owner of the trademark TAMIFLU which is registered in a number of countries inter alia via the Madrid Protocol under no. 713 623 with a priority date of June 3, 1999.

The trademark is registered for antiviral pharmaceutical preparations.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is confusingly similar to its mark TAMIFLU, since the mark is incorporated in its entirety in the domain name. Further, it is noted that the Complainant’s registration of its trademark predates the Respondent’s registration of the domain name.

The Complainant has not authorized or in any other way permitted the Respondent to register and use the disputed domain name and there is no reason to believe that the Respondent should have any legitimate interest in the domain name.

The Complainant’s mark TAMIFLU has been widely referred to in the mass-media during 2005 in connection with the efforts to combat bird flu. Viewing the corresponding website “www.ordertamiflunow.com,” it is clear that the Respondent is intentionally attempting, for commercial purposes, to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. The website contains various elements from the Complainant’s official website “www.tamiflu.com” including the logotype, and this is potentially harmful to the health of Internet users, who may purchase TAMIFLU products through the Respondent’s website under the mistaken impression that they are dealing with the Complainant.

B. Respondent

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

 

6. Discussion and Findings

According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.

In accordance with Paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements are satisfied:

(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.

Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.

A. Identical or Confusingly Similar

The domain name <ordertamiflunow.com> contains the Complainant’s distinctive and well-known trademark in its entirety. The addition of the descriptive components “order” as a prefix and “now” as a suffix to the well-known trademark TAMIFLU does not alter the fact that the domain name is confusingly similar to the Complainant’s trademark. Likewise, the inclusion of the gTLD denomination “.com” shall be disregarded for the purpose of these proceedings.

The requirements in the Policy, paragraph 4(a)(i), are therefore fulfilled.

B. Rights or Legitimate Interests

The Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name incorporating its mark.

The Complainant further alleges that the Respondent has no rights or legitimate interests in the domain name. The Respondent has not rebutted this allegation and, based on the record of this case it is unlikely that any such rights or interests may exist. In this context the Panel particularly notes that even if the Respondent was a reseller of original TAMIFLU products, this does not give the Respondent a right to register and use the Complainant’s trademark as a part of the domain name without the explicit consent of the trademark holder.

The requirements of the Policy, paragraph 4(a)(ii), are also considered fulfilled.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy further provides that the Complainant must prove the Respondent’s registration and use of the domain names in bad faith. Paragraph 4(b) sets out, by way of example, the kind of evidence that may be put forward.

Given the notoriety of the Complainant’s trademark, the coined nature of the word TAMIFLU, and the extensive media reference to the product during 2005, at the time of the Respondent’s registration of the disputed domain name, in relation to the bird flu, it is inconceivable to the Panel that the Respondent registered the domain name without prior knowledge of the Complainant and the Complainant’s mark.

This is underlined by the fact that the disputed domain name is used for a website that appears to offer the Complainants products. Such use also leads the Panel to the conclusion that the Respondent is intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. Therefore, the Panel finds that the domain name is also being used in bad faith.

Considering all the facts and evidence, the Panel therefore finds that the requirements of the Policy, paragraph 4(a)(iii), are also fulfilled in this case.

 

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 name <ordertamiflunow.com> be transferred to Complainant.


Knud Wallberg
Sole Panelist

Date: January 27, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-1256.html

 

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