The Complainant is Novartis AG, Switzerland, represented by BrandIT GmbH, Switzerland.
The Respondent is 四川中诺华医疗科技有限公司 (si chuan zhong nuo hua yi liao ke ji you xian gong si), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on January 27, 2020. On January 27, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 4, 2020, the Registrar 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 the Complainant on February 4, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint in English on February 7, 2020. On February 4, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on February 6, 2020. The Respondent did not comment on the language of the proceeding. 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 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceeding commenced on February 12, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 3, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 4, 2020. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on March 11, 2020. 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. The Respondent sent Chinese language email communications to the Center between March 13 and 19, 2020. 4. Factual Background A. Complainant The Complainant is a global pharmaceutical company incorporated in Switzerland and the owner of the well-known trade mark NOVARTIS (the “Trade Mark”). The Complainant’s products are sold in about 155 countries and reached nearly 800 million people globally in 2018. The Complainant entered the Chinese market in 1979. The Complainant is the owner of registrations in jurisdictions worldwide for the Trade Mark, including Chinese registration No. G663765, registered since July 1, 1996. The Complainant is also the owner of numerous registrations in China for the trade mark 诺华, the Chinese language version of the Trade Mark, including registration No. 1473782, registered since November 14, 2000. B. Respondent The Respondent is a company apparently incorporated in Sichuan, China. C. The Disputed Domain Name The disputed domain name was registered on October 3, 2019. D. Use of the Disputed Domain Name The disputed domain name is used in respect of a website promoting the Respondent’s pharmaceutical business (the “Website”). 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not formally reply to the Complainant’s contentions. In its informal email communications sent to the Center after the date of appointment of the Panel, the Respondent indicated that it was willing to fully cooperate, and asked whether the Center wanted the Respondent to transfer the disputed domain name. 6. Discussion and Findings 6.1 Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement. Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the Parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the Parties and undue delay to the proceeding. The Complainant has requested that the language of the proceeding be English, for reasons including the following: (i) The Respondent obviously understands English because the Website contains English language terms displayed prominently in several places, and the disputed domain name is an English language domain name; (ii) The Respondent ignored the Complainant’s cease and desist letter; and (iii) To avoid any potential unfairness or unwarranted delay in ordering the Complainant to translate the Complaint, the Complainant requests that the language of the proceeding should be in English. The Panel would have accepted a response in Chinese, but the Respondent did not file a response and did not file any submissions with respect to the language of the proceeding. In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs. Although there does not appear to be sufficient evidence before the Panel to support a conclusion that the Respondent is conversant in English, the Panel notes equally that there is no evidence to support the conclusion that the Respondent is not conversant in English, that the Respondent has chosen not to contest this proceeding, and that all of the Center’s communications with the Parties have been sent in English and Chinese languages. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding. Moreover, the Panel has considered the Chinese language email communications from the Respondent after appointment of the Panel. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Substantive Elements of the Policy The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail: (i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration. The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7) preceded by the word “china”. Where a relevant trade mark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8). The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name: (i) before any notice to the respondent of the dispute, 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; or (ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption. The Respondent has failed to show that the Respondent has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in connection with the Website, in order to promote the Respondent’s pharmaceutical business in direct competition with the Complainant’s well-known pharmaceutical business operated worldwide (including in China) under the Trade Mark. In addition, the name of the Respondent featured on the Website comprises the Chinese language version of the Trade Mark; it is falsely claimed on the Website that the Respondent has a long‑term strategical partnership with 瑞士Novartis (Novartis Switzerland); and the Website contains unauthorised images of the Complainant’s building, logo and Trade Mark. There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. In addition, the Panel notes the nature of the disputed domain name, which carries a risk of implied association (see WIPO Overview 3.0, section 2.5.1). In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Noting the composition of the disputed domain name, the Complainant’s well-known Trade Mark and in light of the manner of the use of the disputed domain name highlighted in Section B. above, the Panel finds that the requisite element of bad faith has been made out, under paragraph 4(b)(iv) of the Policy. The Panel therefore finds that the disputed domain name has been 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 Sebastian M.W. Hughes
Sole Panelist
Dated: March 25, 2020
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