The Complainant is F. Hoffmann-La Roche AG, Basel, Switzerland.
The Respondent is Ritu
Rathore, New Delhi, India.
2. The Domain Name and Registrar
The disputed domain name <xenicalsplendor.com>is registered with OnlineNic,
Inc. d/b/a China-Channel.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 19, 2006. On October 25, 2006, the Center transmitted by email to OnlineNic, Inc. d/b/a China-Channel.com a request for registrar verification in connection with the domain name at issue. OnlineNic, Inc. d/b/a China-Channel.com transmitted by email to the Center its verification response. The Center issued a notice of deficiency with respect to the initial Complaint and verified that the subsequently filed Amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (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 November 16, 2006. In accordance with the Rules, Paragraph 5(a), the due date for the Response was December 6, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 7, 2006.
The Center appointed Mark V.B. Partridge as the sole panelist in this matter on December 19, 2006. 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.
On January 4, 2007, The Panel issued a Procedural
Order requesting that the Complainant provide additional evidence. The Complainant
provided its response to that order on January 5, 2007.
4. Factual Background
The Complainant and its affiliates comprise a multi-national pharmaceutical company with operations in more than 100 countries. One of its products is a prescription weight loss medication sold under the mark XENICAL. The mark XENICAL is registered in over 100 jurisdictions world-wide, and is the subject of International Registrations Nos. 612908 and 699154 with a priority date of August 5, 1993.
The Respondent has registered and used the disputed
domain name for a website that purports to sell XENICAL medication. The website
has the appearance of a legitimate site offering a variety of information about
XENICAL and links to a separate site for purchasing a product identified as
XENICAL.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to its XENICAL mark, that the Respondent lacks any right or legitimate interest in the disputed domain name, and that the disputed domain name was registered and used in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel agrees with the Complainant that the disputed domain name is confusingly similar to its XENICAL mark as it fully incorporates the Complainant’s mark followed by the laudatory term “splendor.” The addition of that term is insufficient to avoid confusion, particular in the context of the Respondent’s site which focuses on the XENICAL mark without any explanation of the relationship or lack thereof with the Complainant. The Panel believes the domain name itself and the content of the website creates the impression that the site is operated by the Complainant, when in fact it is not. Thus, the Panel finds for the Complainant on the first element of its claim.
B. Rights or Legitimate Interests
XENICAL appears to be an inherently distinctive mark created by the Complainant, which has been used by the Respondent without the Complainant’s consent. The Respondent’s site itself creates a likelihood that persons will be confused into believing that the site is operated or authorized by the Complainant, when in fact it is not. The confusion created seems to be deliberate. Such conduct does not constitute a bona fide use of the disputed domain name. Similarly, the Respondent’s use of XENICAL is clearly intended as a reference to the Complainant and Complaint’s product, so there is no basis to find that the Respondent is known by the disputed mark. Finally, the record does not support a finding that the Respondent’s use constitutes a non-commercial, fair use of the XENICAL mark. The Respondent has failed to refute any of these facts. The Panel therefore finds that the Respondent lacks any rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The record provided by the Complainant shows that the Respondent uses XENICAL for a website that is likely to cause confusion with the Complainant, its mark and its products. The Respondent’s conduct appears to be an intentional attempt to trade on that confusion for the sale of product. Again, the Respondent has failed to contest the Complaint. Thus, drawing such negative inferences as are appropriate from the Respondent’s default, the Panel finds that the disputed domain name has been registered and used in bad faith in a deliberate attempt to obtain commercial gain based on confusion with the Complainant and its XENICAL mark.
It appears that the Respondent made changes to the site after the filing of
the Complaint to remove the commercial links originally appearing on the site,
presumably in an attempt to avoid relief under the Policy. This decision, however,
is based on the record presented with the Complaint which is sufficient to show
bad faith registration and use under the Policy.
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 <xenicalsplendor.com> be transferred to the Complainant.
Mark V.B. Partridge
Sole Panelist
Dated: January 17, 2007
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