Novartis AG v. Lidia Durán
Claim Number: FA2006001898510
Complainant is Novartis AG (“Complainant”), represented by Maury M. Tepper of Tepper & Eyster, PLLC, North Carolina, United States. Respondent is Lidia Durán (“Respondent”), Spain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sandozencuentros.com>, registered with EuroDNS S.A..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 1, 2020; the Forum received payment on June 1, 2020.
On June 2, 2020, EuroDNS S.A. confirmed by e-mail to the Forum that the <sandozencuentros.com> domain name is registered with EuroDNS S.A. and that Respondent is the current registrant of the name. EuroDNS S.A. has verified that Respondent is bound by the EuroDNS S.A. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 22, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@sandozencuentros.com. Also on June 2, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 25, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is a multinational company that discovers, develops, manufactures and distributes medications, vaccines, and consumer products. Complainant asserts rights in the SANDOZ mark through its registration of the mark in 1934. The mark is registered elsewhere around the world and it is well known.
Complainant alleges that the disputed domain name is legally equivalent and confusingly similar to Complainant’s mark, as it incorporates the mark in its entirety and merely adds the descriptive term “encuentros” (the Spanish term for “meetings”) along with the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and has no connection or affiliation with Complainant and its SANDOZ mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to attract Internet users by suggesting an affiliation with Complainant: the resolving web site displays a single sentence stating that there will be an upcoming meeting, sponsored by SEFAC, relating to care for the elderly with type II diabetes. According to an Internet search, SEFAC is the acronym for “Social Engagement Framework for Addressing the Chronic-disease-challenge.” Thus Respondent is attempting to attract people interested in the care of elderly patients through a meeting that seems as if it could be affiliated with the Complainant and its products but is not.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent’s use of Complainant’s SANDOZ signals an attempt to deceive Internet users and attract them to a competing website. Additionally, Respondent had knowledge of Complainant’s rights in the mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark SANDOZ and uses to market pharmaceutical products, including for the treatment of diabetes The mark is well known.
Complainant’s rights in its mark date back to 1934.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website purports to promote meetings for the care of elderly who have diabetes.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name incorporates Complainant’s SANDOZ mark in its entirety and merely adds the descriptive term “encuentros” (Spanish for “meetings”) and the “.com” gTLD. The addition of a generic or descriptive term and a gTLD is not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its SANDOZ mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, relevant WHOIS information can be used to determine if a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information for the disputed domain name lists the registrant as “Lidia Durán”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to give the impression of an affiliation with Complainant in order to attract Internet users. Specifically, the resolving web site displays a single sentence stating that there will be an upcoming meeting, sponsored by SEFAC, relating to care for the elderly with type II diabetes. SEFAC is the acronym for “Social Engagement Framework for Addressing the Chronic-disease-challenge” and Complainant markets a pharmaceutical used to treat type II diabetes. Use of a disputed domain to pass off as a complainant or suggest affiliation with a complainant is not a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”). Thus, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate non commercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses Complainant’s well known mark to deceive consumers into believing there is a connection or affiliation between Respondent and Complainant, Use of a disputed domain name to pass of as a complainant is evidence of bad faith under Policy ¶ 4(a)(iii). See Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website purports to promote meetings regarding the care of elderly who suffer from diabetes, and Complainant markets a pharmaceutical used to treat diabetes. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sandozencuentros.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 25, 2020
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