Novartis AG v. Javapolis, Brian
Claim Number: FA1402001543982
Complainant is Novartis AG (“Complainant”), represented by Maury M. Tepper of Tepper & Eyster, PLLC, North Carolina, USA. Respondent is Javapolis, Brian (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <novartisservices.com>, registered with Network Solutions, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 17, 2014; the National Arbitration Forum received payment on February 17, 2014.
On February 17, 2014, Network Solutions, LLC confirmed by e-mail to the National Arbitration Forum that the <novartisservices.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, LLC 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 February 18, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 10, 2014 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@novartisservices.com. Also on February 18, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 14, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 uses the trademark NOVARTIS internationally in connection with its development, manufacture, and distribution of medications and related products and services. Complainant has used its NOVARTIS mark since at least as early as 1996, and has registered the mark with the United States Patent and Trademark Office. Respondent registered the disputed domain name <novartisservices.com> on November 10, 2013. The domain name is being used in connection with a website entitled Novartis Referral Services, purportedly for mortgage loans and related financial services.
Complainant contends that the disputed domain name is confusingly similar to its NOVARTIS mark. Complainant states that it has not consented to Respondent’s use of the mark, and that Respondent has no connection or affiliation with Complainant, and neither Respondent nor its business is known by the name NOVARTIS. On these grounds Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent’s website seeks to attract revenue and loan applications, including personal and financial information, from users seeking information about Complainant and its products and services, using the disputed domain name to create a false impression of association with Complainant’s mark. In addition, Complainant asserts that Respondent had constructive notice of Complainant’s mark prior to its selection of the disputed domain name. On these grounds Complainant contends that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The disputed domain name is identical to Complainant’s registered trademark NOVARTIS, but for the addition of the generic term “services” and the top-level domain suffix “.com”. These additions do not significantly distinguish the domain name from Complainant’s mark. See, e.g., True Value Co. v. True Value Services Inc., FA 1404573 (Nat. Arb. Forum Sept. 28, 2011) (finding <truevalueservices.com> confusingly similar to TRUE VALUE); Google Inc. v. GOOGLESERVICES, FA 1391118 (Nat. Arb. Forum July 6, 2011) (finding <googleservices.com> confusingly similar to GOOGLE). The Panel concludes that the domain name is confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark and the generic term “services,” and the only indication of its use is in connection with what appears to be a “phishing” scheme designed to obtain personal and financial information from Internet users under false pretenses. See, e.g., Wells Fargo & Co. v. WhoisGuard c/o WhoisGuard Protected, FA 1103650 (Nat. Arb. Forum Dec. 13, 2007) (finding lack of rights or legitimate interests in similar circumstances). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name “primarily for the purpose of disrupting the business of a competitor.” Under paragraph 4(b)(iv), bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s use of the disputed domain name for what appears to be a “phishing” scheme that exploits confusion with Complainant’s mark is evidence of bad faith under paragraphs 4(b)(iii) and 4(b)(iv). See, e.g., Wells Fargo & Co., supra. The similarity between the disputed domain name and Complainant’s well-known and distinctive mark, together with the fact that the name was registered through a privacy service to conceal Respondent’s identity and the utter lack of any indication that Respondent actually uses the name in connection with a legitimate business, persuades the Panel that Respondent registered the domain name with the intention of targeting Complainant or its mark. The Panel so finds.
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <novartisservices.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 14, 2014
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