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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

F. Hoffmann-La Roche AG v. Xrt Services P/L

Case No. D2006-0410

 

1. The Parties

The Complainant is F. Hoffmann-La Roche AG, Basel, Switzerland.

The Respondent is Xrt Services P/L, Xrt Services, Bunall, Australia.

 

2. The Domain Names and Registrar

The disputed domain names <tamifluandeffectivenessandsafety.com>, <tamifludogsveterinary.com>, <tamifluedorel.com>, <tamiflulocaterincolorado.com> and <tamifluparvo.com> are all registered with RegisterFly.com, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 31, 2006. On April 3, 2006, the Center transmitted by email to RegisterFly.com, Inc., the first of several requests for registrar verification in connection with the domain names at issue. On April 21, 2006, RegisterFly.com, Inc. 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 24, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 14, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 16, 2006.

The Center appointed Hariram Jayaram as the sole Panelist in this matter on May 22, 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

Together with its affiliated companies, the Complainant is one of the world’s leading research-focused healthcare groups in the fields of pharmaceuticals and diagnostics, having global operations in more than 100 countries. The Complainant’s mark TAMIFLU designates an antiviral pharmaceutical preparation, namely a product against flu and is protected as a trade mark in a multitude of countries worldwide by registration and use.

The Respondent is the registrant of the disputed domain names <tamifluandeffectivenessandsafety.com>, <tamifludogsveterinary.com>, <tamifluedorel.com>, <tamiflulocaterincolorado.com> and <tamifluparvo.com>.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends as follows:

(a) The disputed domain names of the Respondent are confusingly similar to the Complainant’s mark as they incorporate the Complainant’s TAMIFLU mark in its entirety. In the past years and in particular in the past months, the TAMIFLU mark has been referred to in the mass media because various governments have decided to stockpile the product TAMIFLU against bird flu. The trademark’s notoriety will increase the likelihood of confusion. The Complainant’s use and registration of the mark TAMIFLU predates the Respondent’s registration of the disputed domain names. Therefore, the disputed domain names are confusingly similar to the trademark of the Complainant.

(b) The Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant has exclusive rights for the mark TAMIFLU and no licence, permission, authorization or consent was granted to the Respondent for the use of TAMIFLU in the disputed domain names. The Respondent’s only reason in registering and using the disputed domain names is to benefit from the reputation of the trademark TAMIFLU by illegitimately trading on its fame for commercial gain and profit.

(c) The disputed domain names were registered and are being used in bad faith. At the time of the registration, the Respondent must have had knowledge of the Complainant’s well-known product and mark TAMIFLU. The Respondent is intentionally attempting to attract Internet users to visit the Respondents’ websites by creating a likelihood of confusion with the Complainant’s well-known mark as to the source, affiliation, and endorsement of the Respondent’s websites or of the products or services posted on or linked to the Respondent’s websites. The use of the domain names in issue appears to be advertising links to websites promoting and/or offering products and services of third parties. The Respondent is intentionally misleading consumers and confusing them so as to attract them to other websites, making them believe that the websites behind those links are associated or recommended by the Complainant. As a result, the Respondent may generate unjustified revenues for each click-through by Internet users of the sponsored links.

B. Respondent

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

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The distinctive trade mark of the Complainant is TAMIFLU. The disputed domain names are <tamifluandeffectivenessandsafety.com>, <tamifludogsveterinary.com>, <tamifluedorel.com>, <tamiflulocaterincolorado.com> and <tamifluparvo.com>. The disputed domain names have the Complainant’s TAMIFLU trade mark as an essential feature. The additional words are “and”, “effectiveness”, “safety”, “dogs”, “veterinary”, “edorel”, “locater”, “in”, “Colorado”, and “parvo”. As noted in EAuto, L.L.C v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc. WIPO Case No. D2000-0047:

“When a domain name incorporates, in its entirety, a distinctive mark, that creates sufficient similarity between the mark and the domain name to render it confusingly similar.”

The Panel finds that the disputed domain names <tamifluandeffectivenessandsafety.com>, <tamifludogsveterinary.com>, <tamifluedorel.com>, <tamiflulocaterincolorado.com> and <tamifluparvo.com> registered by the Respondent are confusingly similar to the Complainant’s trade mark TAMIFLU.

B. Rights or Legitimate Interests

The Complainant has not consented to the use of the trade mark TAMIFLU as part of the disputed domain names of the Respondent. As may be seen from the name of the Respondent, it is not commonly known by the disputed domain names. The Respondent’s websites are composed of various items incorporating the word “tamiflu”. Upon clicking on these items, unrelated sponsored links appear. In Sigikid H. Scharrer & Koch GmbH & Co. KG, MyBear Marketing-und Vertriebs GmbH, Mr. Thomas Dufner v. Bestinfo, WIPO Case No. D2004-0990, it was observed that

“… the sole diversion of Internet traffic by Respondent to other, unrelated websites, does not represent a use of the Domain Name in connection with a bona fide offering of goods and services.”

The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain names <tamifluandeffectivenessandsafety.com>, <tamifludogsveterinary.com>, <tamifluedorel.com>, <tamiflulocaterincolorado.com> and <tamifluparvo.com>.

C. Registered and Used in Bad Faith

As the Complainant’s trade mark is well-known, with extensive coverage in the mass media about TAMIFLU as a medicine for bird flu, the Respondent must have had knowledge of the Complainant’s trade mark at the time of the registration. In Hoffman- La Roche Inc v. WhoisGuard, WIPO Case No. D2005-1288, the conclusion of the Panel was that “with the widespread fame of the TAMIFLU mark it is simply not credible to believe that Respondent registered the disputed domain name without knowledge of Complainant’s mark. Only someone with knowledge of the mark … could have registered the disputed domain name. Thus, Respondent registered the disputed domain name in bad faith”.

This Panel agrees with the above.

The disputed domain names are used as advertising links to websites promoting and/or offering products and services of third parties. In L’Oreal, Biotherm, Lancome Parfums ed Beaute & Cie v. Unasi, Inc, WIPO Case No. D2005-0623, it was the considered view of the panel that such exploitation of the reputation of a trademark to obtain click-through commissions from the diversion of Internet users is a common example of bad faith use.

This Panel sees no reason to disagree with the view expressed in the said case and concludes that the Respondent has registered and used the disputed domain names <tamifluandeffectivenessandsafety.com>, <tamifludogsveterinary.com>, <tamifluedorel.com>, <tamiflulocaterincolorado.com> and <tamifluparvo.com> 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, <tamifluandeffectivenessandsafety.com>, <tamifludogsveterinary.com>, <tamifluedorel.com>, <tamiflulocaterincolorado.com> and <tamifluparvo.com>, be transferred to the Complainant.

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Hariram Jayaram
Sole Panelist

Dated: June 5, 2006