Westmore · UDRP DecisionPharmaton-nhp.com
The Panel ordered transfer of <pharmaton-nhp.com>. It found the domain confusingly similar to the PHARMATON mark because it incorporated the mark in full and the added hyphen and letters “nhp” did not prevent confusing similarity. The Complainant established an unrebutted prima facie case that the Respondent lacked rights or legitimate interests. The Panel also found registration and use in bad faith under paragraph 4(b)(iv), concluding that the Respondent sought commercial gain by diverting Internet users through confusion with the Complainant’s longstanding and distinctive mark.
The timeline behind pharmaton-nhp.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind pharmaton-nhp.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how incorporation of an entire distinctive mark, combined with unrelated website content and unexplained redirection, can support findings across all three UDRP elements. It also shows that respondent default does not itself decide the case, but leaves a supported prima facie case and allegations without rebuttal.
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 Sanofi and Pharmaton v. guo lianhu Case No. D2019-2464 1. The Parties The Complainants are Sanofi, France (the “First Complainant”) and Pharmaton, Switzerland (the “Second Complainant”), represented by Selarl Marchais & Associés, France. The Respondent is guo lianhu, China. 2. The Domain Name and Registrar The disputed domain name <pharmaton-nhp.com> is registered with OnlineNic, Inc. d/b/a China-Channel.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 9, 2019. On October 9, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 10, 2019, 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 October 23, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 12, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 15, 2019. The Center appointed Sok Ling MOI as the sole panelist in this matter on November 22, 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 First Complainant is a French pharmaceutical company headquartered in Paris, France, engaged in research and development, manufacturing and marketing of pharmaceutical products for sale. It offers a wide range of patented prescription drugs to treat patients with serious diseases and has leading positions in seven major therapeutic areas, namely cardiovascular, thrombosis, metabolic disorders, oncology, central nerves system, internal medicine and vaccines. Established in 2004 by the merger of Aventis and Sanofi-Synthelabo and with a name change to “Sanofi” in 2011, the First Complainant is today one of the world’s largest multinational pharmaceutical company by prescription sales. The First Complainant is present in more than 100 countries and employs 100,000 people. It reported a consolidated net sales of at least EUR 30 billion annually for the years 2014 to 2018. The First Complainant uses PHARMATON as a trade name for one of its subsidiaries, the Second Complainant and also as a trade mark for multi-vitamin capsules and syrups for relieving fatigue marketed and sold by the Second Complainant. The Second Complainant is the proprietor of the following trade mark registrations for PHARMATON: Jurisdiction Trade Mark Registration No. Registration Date International Class(es) European Union Pharmaton (stylised) 017995151 May 22, 2019 5 European Union PHARMATON 010943991 November 5, 2012 5 International PHARMATON 788346 July 1, 2002 30 International PHARMATON 601055 April 8, 1993 5 International designating including China PHARMATON 369560 July 13, 1970 3, 5, 10 & 32 International PHARMATON 304716 November 6, 1965 5 The Second Complainant is also the proprietor of the following domain names used in connection with its activities. - <pharmaton.com> registered on February 11, 1996; - <pharmaton.eu> registered on July 30, 2006; - <pharmaton.net> registered on April 27, 1999; - <pharmaton.biz> registered on November 19, 2001; - <pharmaton.info> registered on July 31, 2001; - <pharmaton.org> registered on November 28, 2006. The disputed domain name <pharmaton-nhp.com> was registered on January 8, 2019. According to the evidence submitted by the Complainants, the disputed domain name resolves to a website which purport to sell industrial machinery, but when clicking on the “products” link, it redirects to a blog site with random articles. 5. Parties’ Contentions A. Complainants The Complainants contend that the disputed domain name is confusingly similar to its PHARMATON trade mark. The Complainants further contend that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith. The Complainants request the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainants’ contentions. 6. Discussion and Findings 6.1 Procedural Issue: Consolidation of Multiple Complainants The Complaint was filed by two Complainants against a single respondent. Both Complainants form part of the same corporate group as the Second Complainant is a subsidiary of the First Complainant. The Second Complainant owns the PHARMATON trade mark and domain names. The Panel finds that the Complainants have a common grievance against the person named as the disputed domain name registrant and that it is equitable and procedurally efficient to permit the consolidation of their complaints. Therefore, the Complainants are referred to in this decision collectively as “the Complainant” except as otherwise indicated. See section 4.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). 6.2 Substantive Issues: Findings Paragraph 4(a) of the Policy directs that a complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred: (i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the complainant has rights; (ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. On the basis of the arguments and evidence introduced by the Complainant, the Panel concludes as follows: A. Identical or Confusingly Similar The Panel accepts that the Complainant has rights in PHARMATON by virtue of its use and registration of the same as a trade mark. The disputed domain name <pharmaton-nhp.com> incorporates the Complainant’s trade mark PHARMATON in its entirety. The addition of the hyphen “-” and the letters “nhp” does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trade mark. See section 1.8 of the WIPO Overview 3.0. The addition of the generic Top-Level Domain (“gTLD”) “.com” in this case does not impact the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant’s trade mark. See section 1.11 of WIPO Overview 3.0 . Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trade mark. Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, a complainant bears the burden of establishing that the respondent lacks rights or legitimate interests in the disputed domain name. However, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, the burden of production shifts to the respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy: (i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or (ii) the respondent has been commonly known by the disputed domain name, even if it has acquired no trade mark or service mark rights; or (iii) intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue. See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao Internet foshan co, ltd , WIPO Case No. D2013-0974 . The Complainant has confirmed that the Respondent is not in any way affiliated with the Complainant or otherwise authorized or licensed to use the PHARMATON trade mark or to seek registration of any domain name incorporating the PHARMATON trade mark. The Respondent appears to be an individual by the name of “guo lianhu”. There is no evidence suggesting that the Respondent is commonly known by the disputed domain name or that the Respondent has any rights in the term “pharmaton” or “pharmation-nhp” or “nhp”. According to the Complainant, the disputed domain name resolves to a website which purports to offer industrial machinery for sale but when clicking on the “products” link, it redirects to a blog site with random articles. Such use of the disputed domain name does not constitute a bona fide offering of goods or services. The Panel is satisfied that the Complainant has made out a prima facie case showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production thus shifts to the Respondent to establish rights or legitimate interests in the disputed domain name. Since the Respondent did not file a response to the Complaint and has thus failed to offer any explanation for the registration of the disputed domain name, the prima facie case has not been rebutted. Consequently, the Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely: (i) circumstances indicating that the respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (ii) the respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location. The Complainant has used PHARMATON as a trade mark for more than 50 years. The Panel accepts that the Complainant and its PHARMATON trade mark enjoy a strong reputation and Internet presence. A strong presumption therefore arises that the Respondent was aware of the Complainant’s trade mark when it registered the disputed domain name. Registering a domain name which incorporates a well-known and highly distinctive trade mark suggests opportunistic bad faith. According to the Complainant, the disputed domain name resolves to a website which purports to offer industrial machinery for sale but when clicking on the “products” link, it redirects to a blog site with random articles. The Panel has earlier determined that such use of the disputed domain name does not constitute a bona fide offering of goods or services. Furthermore, such use of the disputed domain name not only misleads the public but also causes disruption to the Complainant’s business. The Panel is satisfied that the Respondent’s purpose of registering the disputed domain name was to trade on the reputation of the Complainant and its trade mark by diverting Internet users seeking the Complainant’s branded products to its own websites for commercial gain. The Panel therefore determines that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of the Respondent’s website. As such, the Panel is satisfied that the Respondent is using the disputed domain name for mala fide purposes and the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case. The Written Notice was not able to be delivered to the Respondent at the facsimile number and postal address confirmed by the Registrar, which may suggest that the Respondent had provided false contact details at the time of registering the disputed domain name. The Respondent has not denied the Complainant’s allegations of bad faith. In view of the above finding that the Respondent does not have rights or legitimate interests in the disputed domain name, and taking into account all the circumstances, the Panel concludes that the Respondent has registered and is using the disputed domain name in bad faith. Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) 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 <pharmaton-nhp.com> be transferred to the Complainant. Sok Ling MOI Sole Panelist Date: December 17, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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