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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Hoffmann-La Roche Inc. v. John Sanders

Case No. D2009-0157

1. The Parties

Complainant is Hoffmann-La Roche Inc. of Nutley, New Jersey, United States of America.

The Respondent is John Sanders of Los Angeles, California, United States of America.

2. The Domain Name and Registrar

The disputed domain name is <xenicaluk.com> registered with GoDaddy.com, Inc. (the "Registrar").

3. Procedural History

Complainant filed the Complaint with the WIPO Arbitration and Mediation Center (the "Center") on February 5, 2009. On February 5, 2009, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name. On February 5, 2009, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing registrant contact details for Respondent. 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 Respondent of the Complaint, and the proceedings commenced on February 9, 2009. In accordance with the Rules, paragraph 5, the due date for a response was March 1, 2009. The Respondent has not filed a response with the Center. The Center gave notice to the Respondent of his default on March 4, 2009.

The Center appointed Andrew P. Bridges as the sole panelist in this matter on March 10, 2009. The Panel is properly constituted. The panelist 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 Panel takes the following facts from the Complaint together with its exhibits. Complainant is, together with its affiliated companies, one of the leading manufacturers of pharmaceutical and diagnostic products in the world. It has registered XENICAL in the United States as a trademark for a pharmaceutical preparation, and Complainant's parent company has registered XENICAL as a trademark in the United Kingdom for pharmaceutical preparations. Complainant claims use of the mark in the US since 1994 and a registration in the UK dating to 1993.

Respondent registered the domain name on April 17, 2008.

5. Parties` Contentions

A. Complainant

Complainant contends that:

- Complainant owns the XENICAL trademark in the US and the UK, with rights dating to 1994 in the US and 1993 in the UK, in connection with a pharmaceutical preparation;

- Sales of the XENICAL pharmaceutical preparation have exceeded hundreds of millions of dollars;

- The mark has become well-known in the United States and throughout the world;

- Complainant owns the domain name xenical.com, through which customers obtain information about the XENICAL pharmaceutical preparation;

- Respondent's domain name <xenicaluk.com> is confusingly similar to Complainant's trademark;

- Respondent has no rights or legitimate interests in the domain name and has not been commonly known by the domain name;

- Respondent has falsely identified the website that corresponds to the challenged domain name as the "official UK Xenical website";

- Respondent has not used the domain for a good faith offering of goods or services;

- Respondent does not make a legitimate noncommercial or fair use of the domain name without intent for commercial gain;

- XENICAL is not a word but is a coined mark with an extremely strong worldwide reputation;

- There is no relationship between Respondent and Complainant, despite Respondent's claim to sponsor the "official UK Xenical website";

- Respondent was aware of the XENICAL trademark and used it in the domain name and on his associated website;

- Respondent, by using the domain name, has intentionally attempted to attract Internet users to his website for financial gain by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or goods; and

- Respondent has registered and is using the domain name in bad faith.

Complainant requests transfer of the domain name to Complainant.

B. Respondent

Respondent has not submitted a response to Complainant`s contentions and evidence.

6. Discussion and Findings

According to paragraph 4(a) of the Policy, 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 allegations of the Complaint and the associated evidence constitute a sufficient showing to satisfy this element. Respondent, in defaulting, does not challenge the evidence or dispute that the domain name is confusingly similar to the XENICAL mark.

The Panel therefore finds that Complainant has rights to the XENICAL mark and that the domain name is confusingly similar to Complainant`s mark. Complainant has thus satisfied its burden of proof under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The allegations of the Complaint and the associated evidence constitute a sufficient showing to satisfy this element. Respondent, in defaulting, does not challenge the evidence or dispute that he lacks rights or legitimate interests in the domain name.

The Panel therefore finds that Respondent has no rights or legitimate interest in the domain name. Complainant has satisfied its burden of proof under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The allegations of the Complaint and the associated exhibits constitute a sufficient showing to satisfy this element. Respondent, in defaulting, does not challenge the evidence or dispute that he has registered and used the domain name in bad faith.

The Panel therefore finds that Respondent has engaged in bad faith registration and use of the domain name. Complainant has satisfied its burden of proof under paragraph 4(a)(iii) of the Policy.

7. Decision

For all the foregoing reasons, and based on the unchallenged allegations and evidence in the Complaint, in accordance with paragraph 4(i) of the Policy and paragraph 15 of the Rules, the Panel orders transfer of the domain name <xenicaluk.com> to Complainant.


Andrew P. Bridges
Sole Panelist

Dated: April 8, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2009/d2009-0157.html

 

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