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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Boehringer Ingelheim Pharma GmbH & Co. KG v. Web Advertising, Corp.
Case No. D2006-1244
1. The Parties
The Complainant is Boehringer Ingelheim Pharma GmbH & Co. KG, Ingelheim, Germany, represented by Hofstetter, Schurack & Skora Patent-und Rechtsanwдlte, Germany.
The Respondent is Web Advertising, Corp., Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <boehringerinelheim.com> is registered with
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 27, 2006. On September 29, 2006, the Center transmitted by email to Capitoldomains, LLC a request for registrar verification in connection with the domain name at issue. On September 29, 2006, Capitoldomains, LLC 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 October 10, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 30, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 31, 2006.
The Center appointed Dennis A. Foster as the sole
panelist in this matter on November 21, 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 large, well-known German pharmaceutical company that has been in business for over a century. It owns registered trademarks for BOEHRINGER INGELHEIM in several countries (Annex 4 of the Complaint).
The Respondent registered the disputed domain name
<boehringerinelheim.com> on November 5, 2005. The website found at the
disputed domain name re-directs Internet users to other health-related websites.
5. Parties’ Contentions
- The Complainant has common law trademark rights in BOEHRINGER INGELHEIM according to § 4 No. 2 German Trademark Act. Moreover, the Complainant’s mark is registered as a trademark in the United States of America and various European countries.
- The Complainant’s mark has become a distinctive identifier associated with the Complainant and its products because of long and intensive world-wide use by the Complainant and the various other companies that make up its whole group of companies.
- As one of the twenty leading pharmaceutical companies in the world, the Complainant’s founding dates back to 1885. With world-wide net sales in 2004 amounting to €8,157 million, it has about 37,000 employees and 143 affiliate companies spread around the globe.
- The disputed domain name, <boehringerinelheim.com>, is nearly identical to the Complainant’s mark.
- The Respondent has no rights or legitimate interests in respect of the disputed domain name. To the best of the Complainant’s knowledge, Respondent is not a holder of any trademark similar to the Complainant’s mark or the disputed domain name; the Respondent does not use the disputed domain name or any similar trademark in connection with offering any of its own goods or services; and the Respondent is not an authorised dealer, distributor or licensor of the Complainant.
- The Respondent registered and is using the disputed domain name in bad faith since the website found at the name serves only as a link to other health-related sites.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
Pursuant to Paragraph 4(a) of the Policy, the Complainant will prevail in this administrative proceeding and gain possession of the disputed domain name, <boehringerinelheim.com>, if the Complainant establishes the following:
- the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name was registered and is being used by the Respondent in bad faith.
A. Identical or Confusingly Similar
The Complainant has furnished the Panel with documents showing it owns valid
registrations of the trademark, BOEHRINGER INGELHEIM, in several different countries.
In fact, a prior panel ruling under the Policy has already affirmed that conclusion
(see Boehringer Ingelheim Pharma GmbH & Co. KG v. Reps, Inc., WIPO
Case No. D2006-0459, May 20, 2006), noting that “[t]he name Boehringer
Ingelheim is a very distinctive identifier of the Complainant and its products.”
The disputed domain name differs from the Complainant’s valid mark only by the exclusion of the space between the two names making up the mark and the letter “g” in the second of the two names. Innumerable prior Policy decisions have held that such minor deviations do not prevent a finding of confusing similarity between a domain name in dispute and a valid trademark.
Per the above, the Panel decides that the Complainant has sustained its burden to prove that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
In this case, the Panel is faced with a paucity of evidence regarding any rights or legitimate interests that the Respondent may have in the disputed domain name. The Complainant has provided little beyond the simple assertions that it has not licensed or otherwise authorized the Respondent’s use of the Complainant’s trademark, and that the Respondent does not have any apparent connection with or rights in any trademark similar to the domain name in contention. The Respondent has presented the Panel with no evidence of any kind.
Although the Policy puts the burden of proof on the
Complainant as to Paragraph 4(a)(ii), the Panel is mindful of the difficulty
in proving a negative proposition, and, in light of previous Policy cases (see
Aetna Inc. v. Peter Carrington a/k/a Party Night, Inc., NAF Case. No. 154527,
May 20, 2003; and Go Daddy Software, Inc. v. Daniel Hadani, WIPO
Case No. D2002-0568, August 1, 2002), considers that the Complainant’s
assertions, together with its undeniable possession of rights in a trademark
virtually identical to the disputed domain name, establish a prima facie
case in its favor. Since the Respondent has presented no rebuttal – by,
for instance, furnishing the Panel with evidence pertaining to ways in which
it might establish its rights or legitimate interests in accordance with paragraph 4(c)
of the Policy – the prima facie case becomes a conclusive case
for the Complainant.
Therefore, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
The Complainant alleges that the website found at the disputed domain name
serves only as a link to other health-related websites. Since the Respondent
has failed to submit a Response, it is reasonable for the Panel to accept the
Complainant’s allegation as true. See e.g., Vertical Solutions Management,
Inc. v. webnet-marketing, inc., NAF Case No. FA95095 (July 31, 2000); and
Talk City, Inc. v. Michael Robertson, WIPO
Case No. D2000-0009, (February 29, 2000). Prior panels operating under the
Policy have found that a respondent’s use of a disputed domain name containing
a strong trademark to merely re-direct Internet users to other websites is,
in and of itself, sufficient grounds to sustain a finding of bad faith registration
and use by that respondent. See e.g., Phillip Morris Incorporated v. r9net,
WIPO Case No. D2003-0004 (February 28, 2003);
and Disney Enterprises, Inc. v. John Zuccarini, Cupcake City and Cupcake
Patrol, WIPO Case No. D2001-0489 (June 19, 2001).
The Panel concludes that such reasoning should control in this case.
As a result, the Panel rules that the Respondent registered and is using the
disputed domain name in bad faith.
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, <boehringerinelheim.com>, be transferred to the Complainant.
Dennis A. Foster
Dated: December 5, 2006