WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION F. Hoffmann-La Roche AG v. James Lee Case No. D2009-1199 1. The Parties
The Complainant is F. Hoffmann-La Roche AG, Switzerland, represented internally.
The Respondent is James Lee, Republic of South Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 10, 2009. On September 11, 2009, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On September 11, 2009, GoD, Inc. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 15, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was October 5, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 6, 2009.
The Center appointed Tobias Zuberbühler as the sole panelist in this matter on October 9, 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 is, together with its affiliated companies, one of the world's leading research-focused healthcare groups in the fields of pharmaceuticals and diagnostics and has operations in more than 100 countries.
The mark XENICAL designates a weight loss medication to help obese people lose weight and keep this weight off. For the mark XENICAL, the Complainant holds registrations in over 100 countries on a world-wide basis, among others the International Registration Nos. 612908 and 699154, for which the priority date is August 5, 1993.
The disputed domain name was registered on August 23, 2009. 5. Parties' Contentions A. Complainant
The addition of the term “sideeffects” to the Complainant' mark does not sufficiently distinguish the disputed domain name from the Complainant's trademark. The disputed domain name is thus confusingly similar to the Complainant's mark.
Since no license, permission or authorization to use the disputed domain name was granted by the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain name.
As the Respondent's website consists of a search engine with sponsored links, it is obvious that the Respondent is attempting to attract Internet users, for commercial purposes, to the Respondent's website, by creating a likelihood of confusion with the Complainant's mark as to the source or endorsement of the Respondent's website. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name consists of the Complainant's mark XENICAL with the term “sideeffects”. Such generic addition does not sufficiently distinguish the disputed domain name from the trademark. Consequently, the disputed domain name is confusingly similar to the Complainant's mark, and the Complainant has fulfilled paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Under the circumstances of this case, there are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name.
The Panel finds, also in view of its finding below, that the Complainant, having made a prima facie case which remains unrebutted, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Respondent's website consists of a search engine with sponsored links. As a result, the Respondent may generate unjustified revenue for each click-through by online consumers of the sponsored links. It is thus obvious that the Respondent is attempting to attract Internet users, for commercial purposes, to the Respondent's website, by creating a likelihood of confusion with the Complainant's mark as to the source or endorsement of the Respondent's website.
It is also evident that the Respondent had knowledge of the Complainant's product/mark XENICAL at the time of registration, i.e. on August 23, 2009.
Under the circumstances, the Panel finds that the Respondent's conduct constitutes bad faith registration and use, thus fulfilling paragraph 4(a)(iii) of the Policy. 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 name be transferred to the Complainant.
Tobias Zuberbühler
Sole Panelist
Dated: October 9, 2009
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