WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pharma Medico UK Limited v. Pharma Vita, Nigel Fawkes
Case No. D2008-0240
1. The Parties
1.1 The Complainant is Pharma Medico UK Limited, of United Kingdom of Great Britain and Northern Ireland, represented by Lett Law Firm, Denmark.
1.2 The Respondent is Pharma Vita, Nigel Fawkes, of United Kingdom of Great Britain and Northern Ireland.
2. The Domain Names and Registrar
2.1 The disputed domain names are:
(together the “Domain Names”) and are all registered with Tucows Inc (the “Registrar”).
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 15, 2008. On February 18, 2008, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On February 19, 2008, 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.
3.2 In response to a notification by the Center that the Complainant had failed to identify the correct Registrar and that the Complaint had not addressed the element of bad faith required by paragraph 3(b)(ix)(iii) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), the Complainant filed an amendment to the Complaint on February 29, 2008. The Center verified that the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules, and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
3.3 In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 3, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was March 23, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 26, 2008.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on April 3, 2008. 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
4.1 The Complainant was established on December 22, 1999 and is a privately owned company incorporated in the United Kingdom. The business of the Complainant is the application of the results of dermatological and biochemical research and patents into products. These include the “Nourella”, “Nourkrin” and “Slendernight” product ranges.
4.2 The Complainant has registered various trade marks that incorporate the Nourella and Nourkrin names. These include:
(i) Community Trade mark No. 004382669 filed on April 12, 2005 for the word “Nourella” in class marks 3, for “Creams, lotions, cosmetics”; 5, “Pharmaceutical preparations”; and 44 “Medical services”.
(ii) Community Trade mark No. 004382677 filed on April 12, 2005 for the word “Nourkrin” in class marks 3, for “Creams, lotions, cosmetics”; 5, “Pharmaceutical preparations”; and 44 “Medical services”.
(iii) UK Trade mark No. 2018209 filed on April 26, 1995 for the word “Nourkrin” in classes 3, “Cleaning preparations”; and 5, “Dietetic foodstuffs and supplements”.
The Complainant does not own a registered trade mark in the term “Slendernight”.
4.3 The Domain Names were all registered by Pharma Vita on August 19, 2002.
4.4 Pharma Vita was at the time of the registration of the Domain Names, a fully owned subsidiary of the Complainant and undertook the sales of the Complainant’s produces in the United Kingdom. It registered the Domain Names on the Complainant’s instructions.
4.5 The Complainant subsequently decided to move from a structure where sales were through subsidiaries to one where sales were made though distributors. Accordingly, in November 2002 the Respondent was sold to Life’s2Good (UK) Limited (“Life’s2Good”), which was also appointed as the Complainant’s exclusive distributor in the United Kingdom and Ireland. It would appear that although thereafter it was Life’s2Good that used and controlled the Domain Names, the Domain Names remained in the name of the Pharma Vita.
4.6 Pharma Vita was dissolved on June 27, 2006. At some point prior to the commencement of these proceedings (although when is not clear) the distribution arrangement, between the Complainant and Life’s2Good came to an end.
4.7 No evidence is before the Panel as to how the Domain Names have been used from time to time although it would appear that at around the date of the Complaint, the domain names resolved to Life’s2Good’s website.
4.8 On or about the date when the proceedings were forwarded to the Panel and at the date of this decision the position appears to have been or is as follows:
(i) the domain names , , , and resolve or resolved to a homepage prominently displaying the heading “lifes2good” and with links to separate websites operated by Life’s2Good in relation to different territories. Those websites offer various goods and services, but as far as the Panel can tell, none of the Complainant’s Nourella or Slendernight products;
(ii) the domain names and resolve or resolved to domain name parking pages operated by . For the most part the pages displayed take or took the form of advertisements for ’s service, but below that are a series of “related links” to “Nourkrin”, “Homes for Sale”, “Apartments”, “Dating Services”, “Chat Rooms”, “Airline Tickets”, “Travel Guides”, “Las Vegas”, “Hawaii”, and “Used Cars”.
5. Parties’ Contentions
A. Complainant
Identical or Confusingly Similar
5.1 The Complainant contends that the Domain Names consist of the Complainant’s trade marks in the words NOURKRIN, NOURELLA and SLENDERNIGHT.
5.2 In addition to the registered trade marks already described, the Complainant submits that it has acquired exclusive rights to the trade mark SLENDERNIGHT through its marketing and selling of a product branded with this name. In support of this the Complainant has provided a printed copy of a marketing leaflet produced by the Complainant, which describes the product. The Complainant has also provided screenshots of pages of a website in English, operating from the domain name , in which “Slender Night” is advertised. It, therefore, contends that, although the Complainant does not hold a registered trade mark for SLENDERNIGHT, the name constitutes an unregistered trade mark in which the Complainant holds rights for the purposes of the Policy.
5.3 The Complainant claims that the Domain Names are identical to its registered and unregistered trade marks previously described and that the rights in these trade marks “belong solely to the Complainant”.
No rights or Legitimate Interests
5.4 The Complainant contends that “there are no facts or evidence whatsoever indicating that the Respondent has any rights or legitimate interests with regard to the disputed domain names”.
5.5 The Complainant states that “By fault no one did at [the time when the shares of Pharma Vita were transferred to Life’s2Good] consider transferring the domains to its rightful owner before completion of the share purchase, since the appointed distributor [presumably Life’s2Good] made approved use of the domains”. Therefore, whilst this is not entirely clear, the Complainant appears to contend that from this date neither Pharma Vita nor Lifes2good had a right or legitimate interest in the Domain Names.
5.6 Further, the Complainant contends that as at the date of the Complaint, “the domain names all point to the former distributor’s website, which means that the present use of the domain names is very abusive to the [current] distributor”. It claims that the “new distributor at no time has had the right to any of the trade marks or domain name”. Therefore, the Complainant’s position seems to be (although again this is not entirely clear) that even if its primary contention as to no right or legitimate interest is incorrect, then there cannot be such a right or interest since the distribution agreement came to an end.
Bad Faith
5.7 The Complainant alleges that the Respondent has used the Domain Names in bad faith. In particular, bad faith is said to be demonstrated by the following:
(i) the fact that the Respondent has not responded to the Complainant’s “numerous” attempts to make contact in order to resolve this matter. However, no further explanation or evidence is provided in this respect.
(ii) the fact that the use by the Respondent of the Domain Names contravenes the terms of an agreement between the Complainant and Life’s2Good (UK) Limited.
The Complainant points in this respect to an extract from a distribution agreement between the Complainant and a company called Irish Response Ltd. Articles 7(2) and 7(5) of the Agreement state:
“(2) The Distributor shall at no time under this Agreement acquire any Intellectual property rights. …
(5) The supplier shall at no time under this Agreement acquire any rights in relation to trademarks, logos, brandnames or Intellectual Property which are the property of the Distributor.”
From this the Complainant claims that “Irish Response Ltd./Lifes2good, Irish Response1 is … under an obligation to ensure that the disputed domain names remain the property and not least rights of the Distributor”
(iii) the Respondent is said to have used the Domain Names to attract Internet users for commercial gain.
B. Respondent
5.8 The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 The Panel has reviewed the Complaint together with its annexes and, in the light of this material, the Panel finds as set out below.
6.2 The Panel does not find that there are any exceptional circumstances within paragraph 5(e) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.
6.3 Notwithstanding the default of the Respondent, it remains incumbent on the Complainant to make out its case in all respects under the Rules set out in paragraph 4(a) of the Policy. Namely the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect
