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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Hoffmann-La Roche Inc. v. Johnny Carpela

Case No. D2007-1831

1. The Parties

The Complainant is Hoffmann-La Roche Inc., of Nutley, New Jersey, United States of America, represented by Lathrop & Gage L.C., of United States of America.

The Respondent is Johnny Carpela, of Sumas, Washington, United States of America.

2. The Domain Name and Registrar

The disputed domain name <accutanesource.com> is registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 11, 2007. On December 12, 2007, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain name at issue. On December 12, 2007, GoDaddy.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. 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 17, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was January 6, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 7, 2008.

The Center appointed Ik-Hyun Seo as the sole panelist in this matter on January 17, 2008. 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, together with its affiliated companies, is one of the leading manufacturers of pharmaceutical and diagnostic products in the world. Among its many products is a dermatological preparation for the prevention and treatment of acne sold and marketed under the trademark ACCUTANE since 1972. Sales of the ACCUTANE product in the United States of America have exceeded hundreds of millions of dollars. The Complainant obtained trademark registration for ACCUTANE in the United States of America on August 28, 1973.

The Respondent appears to be an individual located in the United States of America based on the information provided at the WhoIs database of the concerned Registrar. Also based on the registration details, it appears that the disputed domain name was registered on December 2, 2003.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is identical or confusingly similar to the mark ACCUTANE, in which the Complainant has rights. More specifically, the Complainant asserts that the disputed domain name wholly incorporates the ACCUTANE trademark and has simply added a descriptive and/or non-distinctive term, namely “source”.

The Complainant also contends that the Respondent has no rights or legitimate interests in the disputed domain name. More specifically, the disputed domain name simply forwards to another website. Accordingly, the Respondent cannot be said to have used the disputed domain name in any bona fide and legitimate manner. Further, there is nothing to suggest or support the proposition that the Respondent is commonly known by the domain name in question.

Finally, the Complainant contends that the disputed domain name was registered and is being used in bad faith. More specifically, the Complainant asserts that the disputed domain name could not have been registered without the Respondent’s prior knowledge of the Complainant’s trademark. Further, the disputed domain name forwards to a website that solicits orders for pharmaceutical products, demonstrating awareness of the Complainant’s trademark and the relevant product.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has submitted evidence demonstrating that it has trademark rights in ACCUTANE, which rights are confirmed by a registration in the United States of America that was granted in 1973. The disputed domain name entirely incorporates the Complainant’s trademark and simply adds the term “source”, which is clearly non-distinctive and could also be said to be descriptive under the circumstances of this case.

The addition of such a descriptive or generic term to an existing trademark does little, if anything, to dispel confusing similarity. See, e.g., Bridgestone Corporation v. Horoshiy, Inc., WIPO Case No. D2004-0795 in which the trademark BRIDGESTONE was asserted against <bridgestonegolf.com>.

For the reasons given above, the Panel finds that the Complainant has established this element, and concludes that the disputed domain name is confusingly similar to the Complainant’s registered trademark.

B. Rights or Legitimate Interests

The Complainant has made the required prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent has declined his opportunity to present a rebuttal or explanation. In fact, the Panel cannot imagine that an acceptable rebuttal or explanation can be presented by the Respondent under the circumstances presented here. Accordingly, the Panel finds it reasonable to accept the Complainant’s unchallenged allegations on this point.

Therefore, the Panel finds that the Complainant has established this element, and concludes that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Under the facts and circumstances of this case, this Panel finds that there is sufficient evidence of bad faith in both the registration and use of the disputed domain name. As noted, the domain name wholly incorporates the Complainant’s trademark, and simply adds the term “source”. The subject trademark, ACCUTANE, is clearly a coined term with no proper meaning in English, the primary language of both parties. Further, the Respondent uses this domain name to forward to a website that sells pharmaceutical products, both products originating from the Complainant and products from competitors of the Complainant. Obviously, the Respondent knew of the Complainant’s trademark and the products on which it was used, and used it in a way that capitalizes on it illegitimately. The Panel wishes to note once again that the Respondent has failed to address any of these points.

For the reasons given above, the Panel finds that the Complainant has established the third and final requirement under the Policy.

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 <accutanesource.com> be transferred to the Complainant.


Ik-Hyun Seo
Sole Panelist

Dated: February 14, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1831.html

 

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