The Complainants are Sanofi-aventis, Paris, France and Aventis Inc., Delaware, United States of America, represented by Selarl Marchais De Candé, France.
The Respondent is Andrew Miller, Utah, United States of America.
2. The Domain Names and Registrar
The disputed domain names <wwwambien.net> and <allegr.net> are registered with Fabulous.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 11, 2008. On July 14, 2008, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the domain names at issue. On July 15, 2008, Fabulous.com transmitted by email to the Center its verification response confirming that the 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”), 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 July 22, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was August 11, 2008. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on August 12, 2008.
The Center appointed Adam Taylor as the sole panelist in this matter on August 15, 2008. 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 Complainants are part of a large French pharmaceutical group “Sanofi Aventis” with a presence in more than 100 countries including the United States of America (“United States”) and employing approximately 100,000 people worldwide.
Sanofi-aventis (the “First Complainant”) produces AMBIEN, a treatment for insomnia, which is marketed and sold worldwide including in the United States.
The First Complainant owns a large number of AMBIEN trademarks worldwide including, by way of example, United States trademark number 1808770 dated January 5, 1993 in class 5.
Aventis Inc. (the “Second Complainant”) produces ALLEGRA, which treats the symptoms of seasonal allergies, such as nasal congestion, watery eyes, sneezing and itchy throat. ALLEGRA is marketed and sold worldwide including the United States.
The Second Complainant owns a large number of ALLEGRA trademarks worldwide including, by way of example, United States trademark number 2067728 dated June 3, 1997 in class 5.
The Respondent registered <wwwambien.net> on November 19, 2004, and <allegr.net> on September 16, 2007.
On unspecified dates (the printouts supplied by the Complainants are undated), both disputed domain names resolved to parking pages with sponsored links to websites offering AMBIEN and competing products (in the case of <wwwambien.net>) and ALLEGRA and competing products (in the case of <allegr.net>) .
5. Parties’ Contentions
A. Complainant
Identical or Confusingly Similar
The disputed domain name <wwwambien.net> wholly includes the trademark AMBIEN, which is a made-up word and highly distinctive. The addition of the letters “www” to the Complainant’s trademark is not sufficient to prevent the likelihood of confusion between the trademark AMBIEN and the domain name, which is confusingly similar to the trademark.
The disputed domain name <allegr.net> reproduces almost entirely the trademark ALLEGRA, which is also a made-up word. The omission of the letter “a” does not prevent Internet users from thinking there is a link between the domain name and trademark. The domain name is confusingly similar to the trademark as it differs by only one letter.
Likelihood of confusion also arises because of the fame of the AMBIEN and ALLEGRA marks.
Rights or Legitimate Interests
The Respondent does not have any legitimate interest in the respect of the domain names <wwwambien.net> and <allegr.net>.
The Respondent’s name “Andrew Miller” has no resemblance to AMBIEN or ALLEGRA. The Respondent has consequently no prior rights and/or legitimate interest to justify the use of these well-known and worldwide trademarks.
The Complainants have never licensed or otherwise permitted the Respondent to use their trademarks or to register any domain name including the trademarks.
The Respondent has adopted the Complainants’ trademarks and domain names for its own use and incorporated them into his domain names without the Complainants’ authorization.
The absence of any permission from the Complainants proves that the Respondent has no rights or legitimate interests in respect of the domain names <wwwambien.net> and <allegr.net>.
Registered and Used in Bad Faith
The disputed domain names were registered in bad faith
They were registered for the purpose of attracting Internet users to the Respondent’s websitses by reproducing the distinctive terms AMBIEN and ALLEGRA and creating a likelihood of confusion between AMBIEN and ALLEGRA trademarks and the domain names <wwwambien.net> and <allegr.net>.
The Respondent registered the domain names abusively in order to take advantage of the fame of the Complainants’ products.
The Respondent’s knowledge is also established by the fact that the disputed domain names are used in reference to services provided by the Complainants.
Under these circumstances, it is inconceivable that the Respondent registered the domain names without knowledge of the Complainants’ rights.
The domain names were also used by the Respondent in bad faith.
The Respondent is deliberately trying to gain unfair advantage from the reputation of AMBIEN and ALLEGRA by using the Complainants’ trademarks to divert Internet users to parking websites belonging to the Respondent with links to commercial websites offering medical services or selling AMBIEN or ALLEGRA products.
The advertisements and links probably provide income for the Respondent on a pay per click basis
By using the domain names <wwwambien.net> and <allegr.net> as parking websites, the Respondent is intentionally attempting for financial gain to attract Internet users to its websites by creating a likelihood of confusion with the Complainants’ trademarks and domain names.
Consequently, the domain names <wwwambien.net> and <allegr.net> were registered intentionally and are being used with bad faith for a commercial purpose without any rights or legitimate interest on the part of the Respondent.
B. Respondent
The Respondent did not file a Response or otherwise reply to the Complainants’ contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainants undoubtedly have rights in the marks AMBIEN and ALLEGRA by virtue of their many registered trade marks as well as their extensive trading activities under those names.
Disregarding the domain suffix “.net”, the disputed domain names <wwwambien.net> and <allegr.net> differ from the AMBIEN and ALLEGRA trademarks only by the addition of the acronym “www” (referable to the world wide web) and omission of the letter “a” respectively. These differences are insufficient to distinguish the domain names and trade marks.
The Panel concludes that the disputed domain names are confusingly similar to trademarks in which the Complainants have rights. The Panel therefore finds that the Complainants have established the first element of the Policy.
B. Rights or Legitimate Interests
The Complainants must establish at least a prima facie case under this heading and, if that is made out, the evidential onus shifts to the Respondent to rebut the presumption of absence of rights or legitimate interests thereby created. See, e.g., Atlas Copco Aktiebolag v. Accurate Air Engineering, Inc.,
WIPO Case No. D2003-0070.
The Complainants have not licensed or otherwise authorized the Respondent to use their trademarks.
As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain names to intentionally attempt to attract, confuse and profit from Internet users seeking the Complainants’ products. Such use of the disputed domain names could not be said to be bona fide.
There is no evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply.
The Panel finds that the Complainants have established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent.
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain names and that the Complainants have therefore established the second element of the Policy.
C. Registered and Used in Bad Faith
The Panel is satisfied that the Respondent registered the disputed domain names with the Complainants’ trademarks in mind.
The domain name <wwwambien.net> consists of the distinctive trademark AMBIEN, prefixed by “www”. This is a classic “typosquatting” technique designed to attract Internet users who omit the dot after typing “www” into their browsers.
The disputed domain name <allegr.net> consists of the distinctive trademark ALLEGRA minus the final “a”.
Both domain names are presently being used for websites with sponsored links to sites offering the Complainants’ own products or competing products relating to the relevant trade marks.
The Respondent has not come forward to deny that the Complainants’ assertions of bad faith. It is difficult to conceive of any genuine reason why the Respondent would wish to register the disputed domain names and the Respondent has offered no explanation.
The Panel concludes from the foregoing that the Respondent has registered and used the disputed domain names in bad faith in accordance with paragraph 4(b)(iv) of the Policy. The Respondent has intentionally attempted to attract Internet users to its websites for commercial gain by creating a likelihood of confusion with the Complainants’ trademarks. The Panel therefore finds that the Complainants have established the third element of 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, <wwwambien.net> be transferred to Sanofi-aventis and that the domain name <allegr.net> be transferred to the Aventis Inc.
Adam Taylor Sole Panelist
Dated: August 29, 2008
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