WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Sanofi-aventis v. Nabeel Shahrouri Case No. D2009-0868 1. The Parties
The Complainant is Sanofi-aventis, Gentilly Cedex, of France, represented by Selarl Marchais De Candé, France.
The Respondent is Nabeel Shahrouri, Jeddah of Saudi Arabia. 2. The Domain Names and Registrars
The disputed domain names and are registered with O LLC and R LLC, respectively. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 30, 2009. On July 1, 2009, the Center transmitted by email to O LLC and R LLC respectively a request for registrar verification in connection with the disputed domain names. After several reminders, on July 16, 2009, O LLC and R LLC transmitted by email to the Center their 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 17, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was August 6, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 8, 2009.
The Center appointed Andrew Frederick Christie as the sole panelist in this matter on August 19, 2009. 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 was formed during the year 2004, as a result of merger between the two French companies Aventis SA and Sanofi-Synthelabo. The product of the merger is a multinational company present in more than 100 countries across five continents. It is the biggest pharmaceutical group in Europe, and the fourth biggest in the world, with consolidated net sales of € 27.6 billion in 2008. The Complainant owns international (numerous countries designated), community and national (United States of America, France) trademark registrations for SANOFI, and SANOFI with device. These registrations are in various classes for a range of goods and services, including in particular pharmaceutical products. The earliest of these registrations dates from 1988.
The Respondent registered the disputed domain names and on May 15, 2009 and April 21, 2009, respectively. The registrations occurred soon after publication in a number of media outlets of a rumour of a merger between the Complainant and Bristol-Myers Squibb, another major pharmaceutical company. The disputed domain names are used as URLs to point to sponsored pay-per-click websites that direct visitors to commercial websites of third parties. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain names are confusingly similar to its SANOFI trademark. The domain names reproduce entirely the SANOFI trademark, which has no particular meaning and is therefore highly distinctive. The addition of the letters “bms” after the trademark is misleading, because “BMS” is the acronym of Bristol-Myers Squibb, a competitor company.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain names. In particular, the Complainant contends that the Respondent does not have a prior right to the Complainant's SANOFI trademark, has not been licensed by the Complainant to use its trademark, and has no relationship whatsoever with the Complainant. The Respondent does not use the disputed domain names in connection with a bona fide offering of goods or services, and hence the Respondent is not making a legitimate noncommercial or fair use of the domain names.
The Complainant contends that the Respondent registered and is using the disputed domain names in bad faith. In particular, the Complainant contends that the Respondent's bad faith registration of the disputed domain names is evidenced by the fact that the registrations occurred soon after publication of a rumour that the Complainant would merge with Bristol-Myers Squibb – this being opportunistic cybersquatting. Further, the Complainant contends that the Respondent's bad faith use of the disputed domain names is evidenced by the use of them as URLs for websites with sponsored links to commercial websites in the medical field. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain names incorporate fully the Complainant's SANOFI trademark, together with the letters “bms”. The distinctive part of the domain name is SANOFI, the Complainant's trademark. The addition of the letters “bms” does not dispel the confusing similarity that the disputed domain names have with the Complainant's trademark. There are three possible effects on consumers of addition of the letters “bms” to the SANOFI trademark in the disputed domain names: (i) consumers will think of Bristol-Myers Squibb, the well-known acronym for which is “BMS”; (ii) consumers will think of some other entity or some product or service, for which they know or believe the acronym, shortening or trademark to be “BMS” or “bms”; or (iii) consumers will not give any meaning to the letters. Whichever of these three outcomes results for any particular consumer, the consumer will be confused into associating the domain names with the Complainant by virtue of the inclusion of the Complainant's SANOFI trademark in the domain names. Put another way, the inclusion of the letters “bms” in the domain names does not lessen the inevitable association of the domain names with the Complainant that results from the domain names' incorporation of the Complainant's SANOFI trademark. This Panel is satisfied that the disputed domain names are confusingly similar to the Complainant's trademark. B. Rights or Legitimate Interests
The Respondent is not associated with the Complainant or any business conducted by the Complainant under its SANOFI trademark, and has not been licensed by the Complainant to use the SANOFI trademark. The Respondent has not asserted that it has any rights or legitimate interest in the disputed domain names, and given the confusing similarity of the disputed domain names to the Complainant's SANOFI trademark it is difficult to conceive of any such rights or interests. This Panel is satisfied that the Respondent does not have any rights or legitimate interests in the disputed domain names. C. Registered and Used in Bad Faith
Given the substantial use and wide recognition of the Complainant's SANOFI trademark, it is almost impossible to believe that the Respondent was unaware of the Complainant's trademark when the disputed domain names were registered. Indeed, the fact that registration of the disputed domain names followed soon after publication of a rumour that the Complainant would merge with Bristol-Myers Squibb puts beyond doubt that the Respondent intentionally included the Complainant's SANOFI trademark (and the acronym for Bristol-Myers Squibb) in the disputed domain names. The Complainant has provided evidence that the Respondent has used the disputed domain names as URLs for websites providing sponsored links to commercial websites in the field of the Complainant's activities. This use of the domain names is an intentional attempt to attract, for commercial gain, Internet users to those websites by creating a likelihood of confusion with the complainant's trademark as to the source, sponsorship, affiliation, or endorsement of the websites or locations or of a product or service on the websites. Pursuant to the paragraph 4(b)(iv) of the Policy, this is evidence of the registration and use in bad faith of the disputed domain names. This Panel is satisfied that the Respondent registered and is using the disputed domain names in bad faith. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names and be cancelled.
Andrew Frederick Christie
Sole Panelist
Dated: September 1, 2009
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