The Complainant is Himalaya Global Holdings Limited of Dubai, United Arab Emirates, represented by S. Majumdar & Company, India.
The Respondent is Liv DS of Delhi, India. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2010. On September 17, 2010, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On September 17, 2010, eNom 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 21, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 11, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 12, 2010.
The Center appointed Linda Chang as the sole panelist in this matter on October 28, 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.
Due to special circumstances, the Panel has extended the decision due date to November 23, 2010. 4. Factual Background
The Complainant is a corporation based in the United Arab Emirates and is the parent company of The Himalaya Drug Company, whose Ayurvedic medicaments, including a medicine for liver ailments under the trademark LIV.52 and its variants are marketed in over forty-five countries in Europe, the Americas, Middle East, Africa and Asia. The Complainant is the owner of the trademark LIV.52 and all other trademarks used in connection with the LIV.52 brand of Avurvedic medicine products, including LIV.52 DS.
The disputed domain name was registered on December 10, 2007. The disputed domain name is used in connection with a website selling the Complainant’s LIV.52 products and various other medicinal products which are not manufactured by the Complainant. 5. Parties’ Contentions A. Complainant
(1) The Disputed Domain Name Is Confusingly Similar to the Complainant’s Trademark
The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s trademarks to which the Complainant has rights.
The Complainant states that it owns several registrations for the trademark LIV.52 and other marks including LIV.52 PROTEC, LIV.52 HB, SERIES 52(LABEL), LIV.52 DS in numerous countries all over the world. The Complainant claimed that the abovementioned trademarks are well-recognized, famous and distinctive.
The Complainant asserts that the disputed domain name incorporates the Complainant’s registered trademark LIV.52 DS in full and hence establishes the confusing similarity.
(2) The Respondent Has No Rights or Legitimate Interests in the Disputed Domain Name
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant states that it has never licensed or otherwise permitted the Respondent to use its trademarks or to apply for domain names incorporating its trademarks. Therefore, there is no relationship whatsoever between the Complainant and the Respondent. The Complainant also asserted that, in the view of the Respondent’s reply to the Complainant’s Cease and Desist letter regarding its act of working as a re-seller of the Complainant’s products, the Respondent was unauthorized to sell the Complainant’s products and therefore the Respondent acted illegally. The Complainant continued to argue that the Respondent, by selling the Complainant products at an excessively higher price, adversely affects the Complainant and its credibility in the domestic and international markets, and thus there is no evidence of any fair or noncommercial uses of the disputed domain name.
(3) The Respondent Registered and Is Using the Disputed Domain Name in Bad Faith.
The Complainant contends that the disputed domain name was registered and is being used in bad faith on the basis of the following reasons:
Firstly, the Complainant’s trademark LIV.52 has been used since 1955 and is well-known internationally. Moreover, the Respondent is selling the Complainant’s LIV.52 products on the website connected with the disputed domain name. Therefore, the Complainant contends that the Respondent knew or should have known of the existence of the Complainant's trademark LIV.52 and LIV.52 DS prior to registering the disputed domain name and this prior knowledge constitutes bad faith in registration.
Secondly, the Complainant argues that the fictitious contact address of the Respondent as available on the
WhoIs database is also relevant in a finding of bad faith, citing the previous UDRP cases Electronic Data Systems Corporation v. John Ackleman,WIPO Case No. D2007-0914; Visit America, Inc. v. Visit America, NAF Claim No. FA95093; and D-Market Elektronik Hizmetler Ve Ticaret Anonim Şirketi v. Hakan Dolapçioğlu,WIPO Case No. D2010-0429.
Thirdly, the Complainant asserts that the Respondent is using the website connected with the disputed domain name to sell not only the Complainant’s LIV.52 products, but also products of the Complainant’s competitors, which further constitutes bad faith in using the domain name. The Complainant alleges that the Respondent has intentionally attempted to divert present and potential Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trademarks and official website, citing previous UDRP cases: Philip Morris USA Inc. v. yfmg,WIPO Case No. D2010-0058; F. Hoffmann-La Roche AG v. Direct Privacy ID 9CCC6,WIPO Case No. D2010-0139; and Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove all of the following in order for its contentions to be supported in the proceeding:
(A) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(B) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(C) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant is the registered owner of the trademarks LIV.52 and LIV.52 DS in many countries around the world. The Complainant has acquired substantial goodwill in these trademarks.
Compared to the Complainant’s trademarks, the disputed domain name completely reproduces the trademark LIV.52 DS with the only difference being the removal of a dot between “LIV” and “52”. Pursuant to the principle established by numerous prior UDRP decisions, the Panel holds that the removal of the dot does not negate the confusing similarity between the disputed name and the Complainant’s trademarks. In the Panel’s view, the close similarity between the Complainant’s trademark and the disputed domain name strongly suggests that the Respondent had the Complainant’s trademark in mind when registering the domain name and intended to cause confusion among the Internet users.
Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademarks. Accordingly, the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant has made a prima facie showing of the Respondent’s lack of rights or legitimate interests in the disputed domain name. There is nothing in the record to suggest the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services, to suggest that the Respondent has been commonly known by the disputed domain name, or to suggest that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. Therefore, the Respondents carries the burden of rebuttal. However, the Respondent has not responded to the Complainant’s claims.
The Panel bases its decision on the information and evidence submitted before it, and given the circumstances, finds it more likely than not that the Respondent does not have any rights or legitimate interests in the disputed domain name.
The Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Complainant has developed a reputation for the trademark LIV.52 DS in Ayurvedic medicaments area since 1955, and the Complainant’s trademarked products are marketed worldwide. Given the distinctiveness of the Complainant’s trademark and the fact that the Respondent is using the disputed domain to sell the LIV.52 products, the Panel finds it extremely unlikely that the Respondent would be unaware of the trademark LIV.52 but incidentally chose it as the main part of its domain name.
In addition, the Respondent’s lack of rights or legitimate interests in the disputed domain name as well as the facts that the disputed domain name has been used to sell products that are not produced by the Complainant, and the fictitious contact details of the Respondent on WhoIs database, the Panel is convinced that the purpose of the Respondent’s registration of the disputed domain name is to capitalize on the goodwill of the Complainant’s trademarks by merely registering the trademark as a domain name to intentionally attempt to attract, for commercial gain, Internet users to its website at the disputed domain name, by creating this consumer confusion on the source, sponsorship, affiliation or endorsement of its website. This behavior constitutes bad faith registration and use of the disputed domain name.
The Panel finds that the Complainant has established that the Respondent has registered and used the disputed domain name in bad faith and has met the requirements of 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.
Linda Chang
Sole Panelist
Dated: November 23, 2010
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