The Complainant is Novartis AG, Switzerland, represented by Dreyfus & associés, France.
The Respondent is zhang wen hao（张文昊）, 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 December 15, 2020. On December 16, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 18, 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 December 18, 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 December 21, 2020. On December 18, 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 December 21, 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 proceedings commenced on January 13, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 2, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 9, 2021. The Center appointed Joseph Simone as the sole panelist in this matter on February 25, 2021. 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 The Complainant, Novartis AG, is a global company in the healthcare industry based in Switzerland. Its products are available in about 155 countries and were distributed to nearly 1 billion people globally in 2017. It has more than 200 products in its clinical pipelines and 500 clinical trials in progress. The Complainant first marketed its product, Ritalin, in the 1950s for the treatment of attention deficit hyperactivity disorder (ADHD) and narcolepsy in children and adults. The Complainant has an extensive global trademark portfolio of the RITALIN trademarks, which include the following: - European Union Trade Mark Registration No. 002712818 in Class 5, registered on January 8, 2004 (and duly renewed); and - International Trademark Registration No. 689728 in Class 5, registered on February 13, 1998 (and duly renewed), protected inter alia in Australia, China, Norway, Singapore. The disputed domain name was registered on April 28, 2020. The Complainant asserts that at the time of filing the Complaint, the disputed domain name resolved to an active website featuring adult content for downloading. At the time of this Decision, the disputed domain name resolves to a website, which allows Internet users to download various apps related to adult and gambling content. 5. Parties’ Contentions A. Complainant The Complainant asserts that it has prior rights in the RITALIN trademarks and that it is a leading player in its fields of business. The Complainant further notes that the disputed domain name registered by the Respondent is identical or confusingly similar to the Complainant’s RITALIN trademarks, and the addition of the generic Top-Level Domain (“gTLD”) “.com” does not affect the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant’s trademarks. The Complainant asserts that it has not authorized the Respondent to use the RITALIN mark, and there is no evidence to suggest that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. The Complainant also asserts that there is no evidence suggesting that the Respondent is related to the RITALIN mark in any way, and that there is no plausible good faith reason or logic for the Respondent to have registered the disputed domain name, especially after considering the attendant circumstances. The Complainant therefore concludes that any registration and use of the disputed domain name whatsoever must be in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of the Proceeding In accordance with paragraph 11 of the Rules: “[…] the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” In this case, the language of the Registration Agreement for the disputed domain name is in Chinese. Hence, the default language of the proceeding should be Chinese. However, the Complainant filed the Complaint in English, and requested that English be the language of the proceeding, asserting inter alia that: - The Registrar’s website displays its information in Chinese and in English, so the language of the Registration Agreement of the disputed domain name is likely to be in Chinese or English; - The Complainant is not familiar with the Chinese language and conducting the proceeding in Chinese would result in substantial additional expense; and - The Complainant would have to incur substantial expenses if the Complainant were to submit all documents in the language of the Registration Agreement, and the proceeding would inevitably be unduly delayed. The Respondent was notified in both Chinese and English of the language of the proceeding and the Complaint and did not comment on the language of the proceeding or submit any response. Considering the circumstances in this case, the Panel has determined that the language of the proceeding shall be in English, and the Panel has issued this decision in English. The Panel further finds that such determination would not cause any prejudice to either Party, and would ensure the proceeding that takes place with due expedition. B. Identical or Confusingly Similar The Panel acknowledges that the Complainant has established rights in the RITALIN trademark in many territories around the world. Disregarding the “.com” gTLD, the disputed domain name incorporates the RITALIN trademark in its entirety. Thus, the disputed domain name should be regarded as confusingly similar to the Complainant’s RITALIN trademark, and the addition of the word “buy-” does not preempt a finding of confusing similarity between the disputed domain name and the Complainant’s trademark. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Panel therefore finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in the RITALIN trademark and in showing that the disputed domain name is identical or confusingly similar to its mark. C. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, the complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, the respondent carries the burden of producing evidence in support of its rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview 3.0, section 2.1. The Complainant has not authorized the Respondent to use its trademark, and there is no evidence to suggest that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. Thus, the Complainant has established its prima facie case with sufficient evidence. The Respondent did not file a response and has therefore failed to assert factors or put forth evidence to establish that it enjoys rights or legitimate interests in the disputed domain name. As such, the Panel concludes that the Respondent failed to rebut the Complainant’s prima facie showing of the Respondent’s lack of rights or legitimate interests in the disputed domain name, and that none of the circumstances of paragraph 4(c) of the Policy is applicable in this case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trade mark or service mark) or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) circumstances indicating that the respondent registered the domain name to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) circumstances indicating that the respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location. The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of another party. Match.com, LP v. Bill Zag and NWLAWS.ORG,WIPO Case No. D2004-0230. For the reasons discussed under this and the preceding heading, the Panel considers that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain name within the meaning of paragraph 4(a)(iii) of the Policy. When the Respondent registered the disputed domain name in April 2020, the RITALIN trademarks were already widely known and directly associated with the Complainant’s activities. Thus, in the Panel’s assessment, the Respondent should have been aware of the Complainant’s marks when registering the disputed domain name, given the extensive prior use and fame of these marks. The Respondent has provided no evidence to justify his registration of the disputed domain name. Given the foregoing, it would be unreasonable to conclude that the Respondent – at the time of the registration of the disputed domain name – was unaware of the Complainant’s trademark, or that the Respondent’s adoption of the uncommon and distinctive term “Ritalin” was a mere coincidence. Ultimately, the Complainant’s registered trademark rights in RITALIN for its signature products and services predate the registration date of the disputed domain name several decades. A simple search on the search engine (e.g., Baidu) against the term “Ritalin” would have no doubt revealed that it is a world-renowned brand. The Panel is therefore of the view that the Respondent registered the disputed domain name with full knowledge of the Complainant’s trademark rights and with the intention of taking advantage of the fame and reputation of the Complainant’s trademark. At the time of filing the Complaint, the disputed domain name resolved to an active website featuring adult content for downloading. At the time of this Decision, the disputed domain name resolves to a website that likewise offers Internet users access to downloadable apps related to adult and gambling content. In doing so, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website, by creating a likelihood of confusion with the Complainant’s trademark. Further, it has also potentially deprived the Complainant of the opportunity to offer its products to prospective customers through the disputed domain name. The Panel therefore 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 Joseph Simone
Sole Panelist
Date: March 11, 2021
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