The Complainant is Sanofi-Aventis, Gentilly Cedex, France, represented by Bird & Bird Solicitors, France.
The Respondent is Searchabc.com, Christchurch, New Zealand.
2. The Domain Name and Registrar
The disputed domain name <ambiencods.com> (the “Domain Name”)
is registered with BulkRegister.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on October 6, 2005 and in hard copy on October 7, 2005. The Center transmitted its request for registrar verification by email to the Registrar on October 7, 2005. The Registrar responded by email on October 10, 2005, confirming that it had received a copy of the Complaint, that it was the registrar and the Respondent was the registrant of the Domain Name, that the Uniform Domain Name Dispute Resolution Policy (the “Policy”) applied to the registration, that the Domain Name was locked, and that the registration agreement was in English and contained a submission to the jurisdiction of Maryland, where its principal office is located; and providing the contact details recorded on its Whois database in respect of the Domain Name.
The Center verified that the Complaint satisfied the formal requirements of the Policy, 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 October 12, 2005. The notification was sent by email to the sole email address recorded in the contact details in respect of the Domain Name in the Registrar’s Whois database and to postmaster@ and info@ the Domain Name, and by recorded post to the sole postal address recorded in the contact details in the Whois database. The emails were returned as undeliverable, but it appears that the notification was successfully delivered by post as the receipt for the recorded delivery was returned to the Center.
In accordance with the Rules, paragraph 5(a), the due date for Response was November 1, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 2, 2005.
The Center appointed Jonathan Turner as the Sole Panelist in this matter on November 9, 2005. 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.
Having reviewed the file, the Panel is satisfied that
the Complaint complied with applicable formal requirements, was duly notified
to the Respondent, and has been submitted to a properly constituted Panel in
accordance with the Policy, the Rules and the Supplemental Rules.
4. Factual Background
The Complainant is a large pharmaceutical company. One of its products is a successful treatment for insomnia sold under the mark AMBIEN. The product was launched in 1993, in the United States of America, where it rapidly became and has remained the leading prescription sleep aid. The Complainant has registered AMBIEN as a trademark in numerous countries.
The Domain Name was registered on April 3, 2005, and has been pointed to a web page which offers a search facility. The Respondent has registered more than 260 other domain names.
The Complainant sent a cease and desist letter to
the Respondent by email on June 17, 2005, but did not receive any reply.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the Domain Name is confusingly similar to the mark AMBIEN in which it has rights; according to the Complainant the addition of “cods” to the mark in the second level domain (“SLD”) does not avoid confusion since it is a generic term for a type of fish.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that it was registered and is being used in bad faith. In particular, the Complainant alleges that the Domain Name is being used to generate revenue in the form of fees for promotion on the Respondent’s website to which internet users are attracted by its confusing similarity with the Complainant’s AMBIEN mark.
The Complainant also relies on the facts that the Respondent has made numerous registrations of other domain names and that the Domain Name was registered shortly after the announcement of the results of trials showing AMBIEN to be safe and effective with longer term use. The Complainant alleges that the registration of the Domain Name was opportunistic cybersquatting intended to prevent the Complainant reflecting its AMBIEN mark in a corresponding domain name. The Complainant further submits that the addition of the word “cods” to AMBIEN makes Internet users believe that the Respondent’s website is an official website of the Complainant.
The Complainant requests a decision that the Domain Name be transferred to it.
B. Respondent
As mentioned above, the Respondent did not reply to
the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, to succeed in this proceeding the Complainant must prove (a) that the Domain Name is identical or confusingly similar to a mark in which it has rights, (b) that the Respondent has no rights or legitimate interests in respect of the Domain Name, and (c) that the Domain Name was registered and is being used in bad faith. These requirements will be considered in turn.
A. Identical or Confusingly Similar
It is clear that the Complainant has rights in the trademark AMBIEN. The Panel is also satisfied that the Domain Name is confusingly similar to this mark. The addition of “cods” to the mark in the SLD does not avoid confusion. In the Panel’s view, Internet users are either liable to overlook it, since it follows the distinctive AMBIEN mark, or to assume that it refers to “cash on delivery”.
B. Rights or Legitimate Interests
The Respondent has not carried on any bona fide business or legitimate non-profit activity under the Domain Name. Nor is the Respondent commonly known under the Domain Name. On the evidence, the Panel is satisfied that the Respondent has no rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
The Respondent has not disputed the Complainant’s credible contention that the Respondent is using the Domain Name to attract internet users to its website by creating a likelihood of confusion with the Complainant’s AMBIEN mark for the purpose of commercial gain in the form of fees for promotions directed to the internet users so attracted. The Panel is satisfied that this is indeed the position.
This constitutes evidence of registration and use in bad faith in accordance
with paragraph 4(b)(iv) of the Policy. There is no evidence displacing this
inference. On the evidence as a whole, the Panel concludes that the Domain Name
was registered and is being used in bad faith.
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, <ambiencods.com>, be transferred to the Complainant.
Jonathan Turner
Sole Panelist
Dated: November 15, 2005
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