Complainants are Galderma S.A. of Cham, Switzerland, Galderma Laboratories, L.P. of Forth Worth, Texas, Untied States of America, and Galderna Laboratories, Inc. of Forth Worth, Texas, United States of America, represented by Lombard & Geliebter LLP, United States of America.
Respondent is Private Registrant of Brea, California, United States of America / Nanci Noble of Escondido California, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with New Dream Network, LLC dba DreamH. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 4, 2010. On August 5, 2010, the Center transmitted by email to New Dream Network, LLC dba DreamH a request for registrar verification in connection with the disputed domain name. On August 5, 2010, New Dream Network, LLC dba DreamH transmitted by email to the Center its verification response, disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainants on August 6, 2010, providing the registrant and contact information disclosed by the Registrar and inviting Complainants to submit an amendment to the Complaint. Complainants filed an amended Complaint on August 6, 2010.
The Center verified that the Complaint together with the 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 10, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 30, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 31, 2010.
The Center appointed Andrew Mansfield as the sole panelist in this matter on September 10, 2010. 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
Three parties join as Complainant in this matter. Galderma S.A. is a société anonyme, organized under the laws of Switzerland with a principle place of business in Cham, Switzerland. Galderma Laboratories, Inc. is a Delaware corporation with a principle place of business in Forth Worth, Texas, United States of America. Galderma Laboratories, L.P. is a limited partnership with a principle place of business in Forth Worth, Texas, United States of America. Galderma, Inc. and Galderma Laboratories, L.P. are wholly owned subsidiaries of Galderma S.A. Unless specified, “Complainant” will be used to refer to the combination of all three parties for purposes of this matter.
Upon inquiry, the registrar for the disputed domain name identified the registrant as Nanci Noble of Escondido California, United States of America.
Complainant Galderma S.A. is an international dermatological researcher, developer, manufacturer, wholesaler, and retailer with 2009 sales exceeding USD 1.2 billion. Galderma S.A. owns thirty one subsidiaries worldwide.
Complainant owns, inter alia, the following United States federal trademark applications and registrations:
- United States Federal Registration No. 2985751 for RESTORADERM for therapeutic skin care preparations and treatment for skin disorders in Class 5, issued on August 16, 2005 (filed February 28, 2002).
- United States Federal Registration No. 3394514 for RESTORADERM for non-medicated skin care preparations in Class 3, issued on March 11, 2008 (filed July 6, 2007).
- United States Federal Application Serial No. 77805846 for RESTORADERM for cosmetics and skin care preparations, namely, face, hand and body soaps, cleansers and moisturizers, hair shampoos and conditions, sunblocks and sunscreens in Class 3, pharmaceutical and medical preparations, namely, oral and topical drugs for the treatment of inflammatory disorders of the skin, namely, acne, dermatitis, psoriasis, eczema, rosacea, and related disorders in Class 5, and medical devices, namely, syringes, auto-injectors and needles to be used in the field of dermatology in Class 10 (filed August 17, 2009).
- Canadian Trademark Application No. 1453445 for RESTORADERM for skin care products, namely, skin care preparations, cosmetics, namely skin soaps, skin cleansers, skin moisturizers, hair shampoos, hair conditioners, sun blocks, sun screens in Class 3 (filed September 29, 2009).
- Canadian Trademark Application No. 1453446 for RESTORADERM for pharmaceutical and medical preparations, namely, oral and topical drugs for the treatment of inflammatory disorders of the skin, namely, acne, dermatitis, psoriasis, eczema and rosacea in Class 5 (filed September 29, 2009).
In Canada, Complainant launched a dermatology product under the RESTORADERM trademark in January 2010. Complainant intends to launch that same product under the RESTORADERM trademark in the United States as soon as possible.
The disputed domain name was registered on March 7, 2010. 5. Parties’ Contentions A. Complainant
Complainant asserts that the disputed domain dame, , is identical to its trademark RESTORADERM, which is registered in 82 jurisdictions. In particular, Complainant draws the attention of the Panel to United States Federal Registrations Nos. 2985751 and 3394514 as well as United States Federal Application No. 77805846. Finally, Complainant asserts that it has common law rights in the trademark RESTORADERM dating back to its introduction of a product in Canada under that trademark in January 2010.
Complainant next alleges that Respondent has no rights or legitimate interests in the dispute domain name. The domain name was registered shortly after the introduction of the first Restoraderm product in Canada in January 2010. Since that time, the domain name has not been used in any way. Users visiting the disputed domain name are presented with a simple web page showing two icon files. There is no evidence, according to Complainant, that Respondent has ever been known by the name of Restoraderm or used that mark in commerce.
Finally, Complainant states that the disputed domain name was registered and is being used in bad faith. Complainant concludes that Respondent intended to prevent Complainant or its affiliated companies from reflecting the trademark RESTORADERM in a domain name. Complainant indicates that Respondent’s inactivity in regard to the disputed domain name may still be considered bad faith given the strength of the trademark RESTORADERM and its worldwide registration as a trademark.
Bad faith, Complainant argues, may also be found when a party registers a domain name that corresponds to a product or trademark shortly after learning of the mark.
For these reasons, Complainant asks that the disputed domain name be transferred to it under the Policy. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Complainant has the burden of proof in showing that each element within paragraph 4(a) of the Policy is present. These are as follows:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant have rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used by Respondent in bad faith.
Even when a respondent defaults, as is the case here, Complainant must establish and carry the burden of proof on each of the three elements identified above. See Brooke Bollea, a.k.a Brooke Hogan v. Robert McGowan,WIPO Case No. D2004-0383.
The Panel proceeds to each of these elements below. A. Identical or Confusingly Similar
The disputed domain name is identical to Complainant’s trademark RESTORADERM. This case does not present a situation in which words have been added to the domain name. The domain name consists entirely of the trademark.
There is no dispute that Complainant possesses strong, world-wide rights in the trademark RESTORADERM.
For these reasons, the requirements of paragraph 4(a)(i) of the Policy are fulfilled. B. Rights or Legitimate Interests
The Panel is satisfied that Complainant has made out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, Respondent carries the burden of demonstrating a right or legitimate interest in the disputed domain name. By matter of default, Respondent has failed to do so, and the Panel therefore finds Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides the following non-exclusive examples of registration and use in bad faith:
“For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The Panel finds that Respondent must have been aware of Complainant’s rights in the RESTORADERM trademark when it registered the disputed domain name. The Panel concludes, based on the date of Respondent’s registration, that Respondent registered the disputed domain name only after learning of Complainant’s products under that mark and finding the domain name had not yet been registered. A respondent’s knowledge of a complainant’s trademark when registering a domain name containing that mark often has been found by UDRP panels to constitute evidence of bad faith registration. See ACCOR v. Eliah Zusstone,WIPO Case No. D2006-0362.
Further, in the Panel’s view, taking into consideration the evidence on the current record, Respondent’s purpose of registration of the disputed domain name was most likely to obtain payment from Complainant, the trademark holder, for the transfer of the domain name to Complainant. In the absence of any dictionary meaning of the term “restoraderm” other than Complainant’s trademark, and noting that there has been no Response filed, the Panel finds that Respondent registered the disputed domain name primarily for the purpose of selling, renting, or otherwise seeking to transfer the domain name for financial gain.
For the above stated reasons, the Panel finds that Respondent has registered and used the disputed domain name in bad faith as provided in paragraph 4(a)(iv) 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 Complainant Galderma S.A.
Andrew Mansfield
Sole Panelist
Dated: September 24, 2010
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