Complainants are Merck & Co., Inc. and Schering Corporation of New Jersey, the United States of America, represented by Lowenstein Sandler PC, the United States of America.
Respondent is WebContents, Inc. of La Grange, Illinois, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with Dotster, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 13, 2010. On September 14, 2010, the Center transmitted by email to Dotster, Inc. a request for registrar verification in connection with the disputed domain name. On September 14, 2010, Dotster, Inc. transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on September 22, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 12, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 13, 2010.
The Center appointed Lorelei Ritchie as the sole panelist in this matter on October 25, 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
Complainants Merck & Co., Inc., and Schering Corporation, its wholly-owned subsidiary, are international pharmaceutical companies. They own the rights to the mark QUADRIDERM, which they have registered in various countries including in Argentina (Registration No. 2137840; registered in 1998); Hong Kong (Registration No. 19800125; registered in1999); Panama (Registration No. 11730; registered in 1999); and Switzerland (Registration No. 409160; registered in 1973).
The disputed domain name was registered on October 4, 2005. Respondent has no affiliation with Complainants. Respondent has, over the years, provided sponsored links from the website associated with the disputed domain name to websites that describe or advertise goods or services that are unaffiliated with Complainants or Complainants’ services. These include competing pharmaceutical products and services. Complainants have not authorized these links, nor the use of their trademarks therewith. 5. Parties’ Contentions A. Complainants
Complainants contend that (i) is identical or confusingly similar to Complainants’ trademarks; (ii) Respondent has no rights or legitimate interests in the disputed domain name; and (iii) Respondent registered and is using the disputed domain name in bad faith. B. Respondent
Respondent did not reply to Complainants’ contentions in this proceeding. 6. Discussion and Findings A. Identical or Confusingly Similar
This Panel must first determine whether is identical or confusingly similar to a trademark or service mark in which Complainants have rights in accordance with paragraph 4(a)(i) of the Policy. The Panel finds that it is. The disputed domain name is identical to Complainants’ trademark, QUADRIDERM, which has been registered in several countries around the world dating back to the 1960s. So, consumers would expect to find information offered by Complainants on such a website.
This Panel therefore finds that the disputed domain name is identical or confusingly similar to a trademark in which Complainants have rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Policy provides some guidance to respondents on how to demonstrate rights or legitimate interests in the domain name at issue in a UDRP dispute. For example, paragraph 4(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name “in connection with a bona fide offering of goods or services”; (ii) demonstration that respondent has been “commonly known by the domain name”; or (iii) “legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.
Respondent did not reply to the Complaint, however, and no evidence has been presented to this Panel that might support a claim of Respondent’s rights or legitimate interests in the disputed domain name. Rather, as mentioned in section 4 of this Panel’s decision, Respondent has used the disputed domain name to divert Internet users via sponsored links, to websites that are unaffiliated with Complainants or Complainants’ services.
Therefore, this Panel finds that Complainants have provided sufficient evidence to demonstrate Respondent’s lack of “rights or legitimate interests” in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
There are several ways that a complainant can demonstrate that a domain name was registered and used in bad faith. For example, paragraph 4(b)(iv) of the Policy states that bad faith can be shown where “by using the domain name [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] 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 [respondent’s] website or location or of a product or service on [the] web site or location”. As noted in section 4 of this Panel’s decision, Respondent has, over the years, provided sponsored links from the website associated with the disputed domain name to websites that describe or advertise goods or services that are unaffiliated with Complainants or Complainants’ services. These include competing pharmaceutical products and services. Complainants have neither authorized these links, nor the use of their trademarks therewith. Hence, Respondent is trading on the goodwill of Complainant’s trademarks to attract Internet users, presumably for Respondent’s own commercial gain.
Therefore, this Panel finds that Respondent registered and used the disputed domain name in bad faith in accordance with 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 disputed domain name be transferred to Complainants.
Lorelei Ritchie
Sole Panelist
Dated: November 3, 2010
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