Westmore · UDRP DecisionRitalin-bestellen.com
The Panel ordered transfer of <ritalin-bestellen.com> to Novartis AG. It found the domain confusingly similar to the RITALIN trademark, that the Respondent lacked rights or legitimate interests, and that registration and passive holding were in bad faith. The Panel relied particularly on the incorporation of RITALIN in its entirety, the German term “bestellen” meaning “to order,” the well-known and longstanding character of the mark, the inactive website, the absence of authorization or plausible legitimate use, and the Respondent’s failure to answer either the cease-and-desist letter or the Complaint.
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This decision illustrates a passive-holding transfer involving a well-known pharmaceutical mark combined with a term suggesting a commercial transaction. The Panel did not require an active website to find bad-faith use; it assessed the mark’s longstanding reputation, the domain’s composition, the absence of authorization or plausible legitimate use, and the Respondent’s failure to provide any contrary explanation.
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 Novartis AG v. See PrivacyGuardian.org, Domain Administrator / Christian Lombok Case No. D2019-0674 1. The Parties The Complainant is Novartis AG of Switzerland, represented by Dreyfus & associés, France. The Respondent is See PrivacyGuardian.org, Domain Administrator of United States of America / Christian Lombok of Netherlands. 2. The Domain Name and Registrar The disputed domain name <ritalin-bestellen.com> (the “Domain Name”) is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 26, 2019. On March 26, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 27, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 27, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 29, 2019. The Center verified that the Complaint together with amended 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 April 5, 2019. In accordance with the Rules, paragraph 5, the due date for Response was April 25, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 29, 2019. The Center appointed Mathias Lilleengen as the sole panelist in this matter on May 7, 2019. 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 provides healthcare solutions through medicines, eye care and generic pharmaceuticals. The Complainant’s pharmaceuticals division is a world leader in offering patent-protected medicines to patients and physicians. It has international presence. The Complainant’s product, Ritalin, is indicated for the treatment of attention deficit hyperactivity disorder (ADHD) and narcolepsy in children and adults. It was first marketed during the 1950s and it is today available in over 70 countries. Ritalin has been classified among the top 20 pharmaceutical products. The Complainant owns numerous RITALIN trademark registrations around the world, such as International trademark n° 689728, registered on February 13, 1998, European Union trademark n° 002712818, registered on January 8, 2004. In addition, the Complainant owns the domain name <ritalin.com>, registered on March 6, 2000. Pursuant to the Registrar, the Domain Name was registered on October 1, 2018. At the time of filing the Complaint, and the time of drafting the decision, the Domain Name resolved to an inactive page. 5. Parties’ Contentions A. Complainant According to the Complainant, the Domain Name is identical or at least confusingly similar to the Complainant’s trademark RITALIN, as the Domain Name reproduces the Complainant’s trademark RITALIN in its entirety. Moreover, the addition of the term “bestellen” (“to order” in the German language) only enhances the risk of confusion. The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant has not authorized the Respondent to use and register its trademark, or to seek registration of any domain name incorporating said mark. The registration of the RITALIN trademark preceded the registration of the Domain Name for years. The Domain Name is similar to the well-known RITALIN trademark, and the Respondent cannot pretend he was intending to develop a legitimate activity through the Domain Name. The Respondent has not replied to the Complainant’s cease and desist letter. The Complainant argues that it is implausible and unlikely that the Respondent was unaware of the Complainant when he registered the Domain Name. The Complainant and its trademark are widely known throughout the world. The Complainant claims the Domain Name has been used in bad faith. In the absence of a license or permission from the Complainant to use the widely known trademark, no actual or contemplated bona fide or legitimate use of the Domain Name could reasonably be claimed. The passive holding of the Domain Name does not preclude a finding of bad faith. The Respondent has not provided any evidence of actual or contemplated use in good faith of the Domain Name, and the Respondent has never replied to the Complainant’s cease and desist letter. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Panel is satisfied that the Complainant has established rights in the trademark RITALIN. The test for confusingly similarity involves the comparison between the trademark and the Domain Name. In this case the Complainant’s registered trademark is reproduced in its entirety in the Domain Name, with the addition of a hyphen and “bestellen”, which indeed means “to order” in German. The addition does not prevent a finding of confusing similarity. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) For the purposes of assessing identity or confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) “.com”. The Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests The Complainant has not authorized the Respondent to use its trademark or register the Domain Name. The Respondent has not made any use of, or demonstrable preparations to use, the Domain Name or a corresponding name in connection with a bona fide offering of goods or services. The Respondent is not making any legitimate noncommercial or fair use of the Domain Name. The Panel finds that the Complainant has made out a prima facie case. The Respondent has not responded and the Panel is unable to conceive how the Respondent could be said to have any rights or legitimate interests in respect of the Domain Name. Moreover, the Panel finds that the Domain Name carries a risk of implied affiliation. See section 2.5.1 of the WIPO Overview 3.0 . Accordingly, the Panel finds that paragraph 4(a)(ii) of the Policy has been satisfied. C. Registered and Used in Bad Faith The Panel is satisfied that the Respondent was aware of the Complainant and its trademark when he registered the Domain Name. The Complainant has used its trademark decades before the registration of the Domain Name. The trademark is well known. The Panel agrees with the Complainant that the passive holding of the Domain Name does not preclude a finding of bad faith. There is no license or permission from the Complainant to use the widely known trademark. The Respondent has not provided any evidence of actual or contemplated use in good faith. Based on the case file, no bona fide or legitimate use of the Domain Name could reasonably be claimed. Finally, the Respondent has not replied to the Complainant’s cease and desist letter, nor the Complaint. The Panel concludes that the Domain Name was registered and is being used in bad faith. 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 Domain Name, <ritalin-bestellen.com> be transferred to the Complainant. Mathias Lilleengen Sole Panelist Date: May 21, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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