Westmore · UDRP DecisionCombivent.xyz
The Panel ordered transfer of <combivent.xyz>. It found the domain confusingly similar to the Complainant’s COMBIVENT trademarks, found no rights or legitimate interests because the Respondent lacked authorization and showed no bona fide or commonly known use, and found bad-faith registration and use based on the Respondent’s awareness of the widely known Complainant and marks, passive holding, failure to respond, and obviously false registration address data.
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This decision illustrates how passive holding can satisfy the UDRP bad-faith requirement when combined with an established trademark, a panel finding of respondent awareness, absence of any conceivable legitimate use, respondent default, and obviously false registration data. Inactivity was not treated as neutral when assessed alongside those cumulative circumstances.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Boehringer Ingelheim International GMBH v. Ralf Zinc Case No. D2016-1236 1. The Parties The Complainant is Boehringer Ingelheim International GMBH of Ingelheim, Germany, represented by Nameshield, France. The Respondent is Ralf Zinc of Hamburg, Germany. 2. The Domain Name and Registrar The disputed domain name <combivent.xyz> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 17, 2016. On June 17, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 20, 2016, the Registrar 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” or “UDRP”), 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 21, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 11, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 13, 2016. The Center appointed Dietrich Beier as the sole panelist in this matter on July 20, 2016. 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 the proprietor of several registered trademarks for COMBIVENT, inter alia of the active German trademark 1144867 COMBIVENT registered on August 18, 1989 in class 5. The disputed domain name was registered on June 1, 2016. The disputed domain name does not resolve to an active website. Whereas the Complaint was successfully delivered by email, it could not be delivered to the postal address of the Registrant mentioned in the registration data since the mentioned address does not exist. There were not only two major German cities mentioned in the address, Hamburg and Frankfurt am Main, but even the street name, i.e. Red Street, is in English and does not exist in Germany. Also, the German equivalent, i.e. Rote Straße, does not exist in Hamburg or Frankfurt am Main. Furthermore, the mentioned postal code belongs to the German city of Dortmund. 5. Parties’ Contentions A. Complainant The Complainant is a family-owned pharmaceutical group of companies with roots going back to 1885, when it was founded by Albert Boehringer (1861-1939) in Ingelheim am Rhein, Germany. Since then, Complainant has become a global research-driven pharmaceutical enterprise and has today about 140 affiliated companies world-wide with roughly 46,000 employees. The two main business areas of Complainant are: Human Pharmaceuticals and Animal Health. In 2013 alone, net sales of the Complainant´s group amounted to about EUR 14.1 billion. “Combivent” is a multivitamin and mineral supplements brand developed to enhance people’s physical and mental well-being. The Complainant contends that the disputed domain name <combivent.xyz> is identical to its trademarks. The Complainant does not carry out any activity for, nor has any business with the Respondent. Neither a license nor an authorization has been granted to the Respondent to make any use of the Complainant’s trademark, or apply for registration of the disputed domain name. Furthermore, the disputed domain name has been resolving to an inactive website since its registration. By registering and using the disputed domain name, it seems clear that the Respondent has maintained the disputed domain name in order to prevent the Complainant to register its trademark as a domain name for the present top-level domain. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order to succeed in its claim, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied: (i) The disputed 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 with respect to the disputed domain name; and (iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has established the fact that it has valid trademark rights for COMBIVENT in class 5. The disputed domain name is confusingly similar to the marks since it is acknowledged that the generic Top-Level Domain (“gTLD”) does not have a relevant influence on the similarity of a trademark and a domain name. The Panel therefore considers the disputed domain name to be confusingly similar to the COMBIVENT trademarks in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Respondent has no rights or legitimate interests in the disputed domain name as the Respondent is not a licensee of the Complainant nor has the Complainant granted the Respondent any permission or given its consent to use its trademarks. Furthermore, the Respondent has no rights or legitimate interests in the disputed domain names as there is no indication that the Respondent is commonly known by the name “Combivent” or that the Respondent is using the disputed domain names in connection with a bona fide offering of goods or services. The Panel therefore finds that the Respondent does not have rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith In the view of the panel, the Respondent must have been aware of the widely known Complainant and its trademarks when registering the disputed domain name. The Complainant has not authorized the Respondent to make use of its trademarks. From the record, the Panel does not see any conceivable legitimate use being made by the Respondent of the disputed domain name. It is the consensus view of previous UDRP panels following the decision Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003 , that the apparent lack of active use of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include, not exhaustive, the complainant having a well-known trademark, no response to the complaint having been filed and the registrant’s concealment of its identity. In the present case, no response was filed; also the address data of the registrant are not simply incomplete, but obviously wrong, having been created by mentioning two different cities and an English street name not existing. The Panel therefore considers the disputed domain name to have been registered and used in bad faith in accordance with paragraph 4(a)(iii) of the Policy. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <combivent.xyz> be transferred to the Complainant. Dietrich Beier Sole Panelist Date: August 1, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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