The Complainant is Alcon Vision, LLC (“Complainant”), United States of America (“United States”), represented internally.
The Respondent is Edward Barr (“Respondent”), United States of America. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 9, 2019. On October 10, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 13, 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 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 October 15, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 4, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 5, 2019. The Center appointed M. Scott Donahey as the sole panelist in this matter on November 13, 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 a member of a family of companies operating under the tradename “Alcon” (hereinafter “the Alcon Medical Group”). The Alcon Medical Group’s predecessor began operations in Fort Worth, Texas, United States, in 1945 and has used the mark ALCON in its business continuously since 1947. It is now one of the world’s leading eye care pro ducts and medical device companies in the world. The Alcon Medical Group employs over 20,000 people from more than 90 countries. It has a physical presence in more than 70 countries serving more than 200 million people each year. The Alcon Medical Group is listed on the New York Stock exchange and the Swiss stock exchange, and in 2018 had consolidated annual net sales of over seven billion USD. Complaint, Annex D. Complainant owns several United States registered marks in the trademark ALCON, which trademark registrations issued at least as early as October 27, 1953. Complaint, Annex E. Respondent registered the disputed domain name on May 19, 2019, long after Complainant had registered its United States trademarks and almost 70 years after Complainant began to use the trademark in its medical business. In the registration of the disputed domain name, Respondent listed a telephone number that is the number of the office of the Federal Bureau of Investigation in Cleveland, Ohio, United States. Complaint, Annex F. Respondent uses the disputed domain name to link to Complainant’s primary web site at www.alcon.com. Complaint, Annex G. On August 16, 2019, Complainant’s counsel sent a letter to Respondent in care of the address listed in the WhoIs. Complaint, Annex H. Complainant has received no response to this letter. 5. Parties’ Contentions A. Complainant Complainant contends that the disputed domain name is confusingly similar to its long used and well-known ALCON trademark. Complainant asserts that Respondent has no right or legitimate interests in respect to the disputed domain name. Finally, Complainant alleges that the disputed domain name has been registered and is being used in bad faith. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Rules, paragraph 5(a). Paragraph 4(a) of the Policy directs that the complainant must prove each of the following: (i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and, (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and, (iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The disputed domain name consists of Complainant’s well-known ALCON trademark separated by a hyphen from the English word “medical.” The word medical is descriptive of the field in which Complainant conducts its business. Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith Respondent registered the disputed domain name after Complainant had long used its ALCON trademark in the medical field and after the trademark had become well known and repeatedly registered in the United States. When Complainant delivered a cease and desist letter to Respondent, demanding that the disputed domain name be transferred to Complainant, Respondent failed to respond. Respondent uses the disputed domain name to redirect to Complainant’s website. Respondent, after having received notice of the Complaint, failed to respond to the allegations contained therein. Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith. 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 disputed domain name, M. Scott Donahey
Sole Panelist
Date: November 13, 2019
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