Complainant is Sanofi, France represented by Selarl Marchais & Associés, France.
Respondent is Linda Brown, Canada. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Hosting Concepts B.V. d/b/a Openprovider (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 23, 2019. On May 24, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 27, 2019, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center sent an email communication to Complainant on May 29, 2019 providing the registrant and contact information disclosed by the Registrar.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 31, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 20, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 21, 2019.
The Center appointed Robert Badgley as the sole panelist in this matter on June 28, 2019. 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
Complainant is one of the world’s largest pharmaceutical manufacturers. One of Complainant’s products is a drug for the treatment of insomnia sold under the trademark AMBIEN. The AMBIEN trademark reflects a coined word, and hence is a fanciful mark. The AMBIEN mark has been registered in numerous jurisdictions since 1993. It has been well established through prior decisions under the Policy that AMBIEN is a well-known trademark.
The Domain Name was registered on February 14, 2019. For a time, the Domain Name resolved to a website featuring the header “Buy Ambien.” The site then discusses the drug and includes a photo of a bottle of AMBIEN. The site also includes various hyperlinks, including a “Buy Ambien” link and other links which lead the consumer to commercial websites where AMBIEN and other products are offered for sale. According to Complainant, some of these drugs are those of its competitors. 5. Parties’ Contentions A. Complainant
Complainant asserts that it has established the three elements required under the Policy for a transfer of the Domain Name. B. Respondent
Respondent has not replied to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel concludes that Complainant has rights in the mark AMBIEN through widespread registration and use demonstrated in the record.
The Panel concludes further that the Domain Name is confusingly similar to the AMBIEN mark. The Domain Name incorporates the distinctive AMBIEN mark in its entirety and surrounds that dominant word with the descriptive words “generic” and “online.” These additional words scarcely diminish the confusing similarity between the fanciful AMBIEN mark and the Domain Name.
Complainant has established Policy paragraph 4(a)(i). B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a 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.
The Panel concludes that Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent has not come forward to explain her bona fides vis-à-vis the Domain Name. The Domain Name, at least for a time, resolved to a website discussing the AMBIEN drug and featuring hyperlinks to commercial websites purporting to sell pharmaceuticals, some of which are in competition with Complainant’s products. This is plainly not a legitimate use of the Domain Name.
Complainant has established Policy paragraph 4(a)(ii). C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in bad faith:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith. The Domain Name fully incorporates the fanciful and well-known AMBIEN mark, and resolves to a website discussing the AMBIEN product and linking to sites where pharmaceutical products may be purchased. It is thus clear that Respondent had the AMBIEN mark in mind when registering the Domain Name.
It is equally clear that the Domain Name has been used in bad faith, within the meaning of the above-quoted Policy paragraph 4(b)(iv). Respondent has used the Domain Name to lure consumers seeking Complainant’s site by means of the confusion between the AMBIEN mark and the Domain Name. It appears very probable that Respondent derives per-click revenue for these hyperlinks. Complainant plausibly alleges as much and Respondent has not denied it.
Complainant has established Policy paragraph 4(a)(iii). 7. Decision
For 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.
Robert A. Badgley
Sole Panelist
Date: July 1, 2019
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