The Complainant is Novo Nordisk A/S of Bagsvaerd, Denmark, internally represented.
The Respondent is Service, Customer of Miami, Florida, United States of America.
2. The Domain Name and Registrar
The disputed domain name, <novopenecho.com> (the “Domain Name”), is registered with Network Solutions, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 5, 2009. On February 6, 2009, the Center transmitted by email to Registrar a request for registrar verification in connection with the Domain Name. On February 6, 2009, the Registrar 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” 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 17, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was March 9, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 10, 2009.
On March 12, 2009, the proceedings were suspended until April 8, 2009 at the request of the Complainant to enable settlement negotiations to take place. On April 7 and May 5, 2009, the proceedings were further extended for periods of thirty (30) days for the same purpose. On May 22, 2009, the Complainant requested that the proceedings be re-commenced and on May 26, 2009, the Center notified the parties that it would proceed to appoint a panelist.
The Center appointed Tony Willoughby as the sole panelist in this matter on June 8, 2009. 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.
For unforeseen reasons the Panel was unable to complete the decision within the allotted time and requested the Center to extend the time for decision until June 26, 2009.
4. Factual Background
The Complainant is a leading Danish pharmaceutical company. It is the proprietor of Danish trade mark registration number VR 2009 00092 dated November 21, 2008 NOVEPEN ECHO for “medical and surgical apparatus and instruments; hypodermic syringes for injection”. The registration document exhibited to the Complaint appears to indicate that the registration came through on January 12, 2009. The trade mark is not in use.
The Domain Name was registered by the Respondent on January 19, 2009. Currently, it connects to a webpage as depicted below:
Welcome to the [name deleted] homepage!
This is a first attempt to create a homepage including pictures, e-mail support and other stuff, so please be patient
[picture of family group deleted]
From the left is [name], [name], [name] and [name]
Picture taken at [name of location deleted]
5. Parties' Contentions
A. Complainant
The Complainant contends that the Domain Name is identical or confusingly similar to a trade mark in which it has rights.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name.
Finally, the Complainant contends that the Domain Name was registered and is being used in bad faith.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. General
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove that:
(i) The 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 Domain Name; and
(iii) The Domain Name has been registered in bad faith and is being used in bad faith.
B. Identical or Confusingly Similar
The Domain Name comprises in substance the Complainant's registered trade mark and the generic domain suffix. The domain suffix may be ignored for the purpose of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy.
The Panel finds that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights.
C. Rights or Legitimate Interests
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent is not known by the Domain Name, but according to the Registrar's Whois database by the unlikely name of “Service, Customer”.
The use to which the Domain Name is being put (as depicted in Section 4 above) bears no relation whatever to the Domain Name and the Panel cannot conceive of any reason why the Respondent might reasonably be said to have rights or legitimate interests in respect of the Domain Name.
In the absence of any explanation from the Respondent the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
D. Registered and Used in Bad Faith
The unchallenged evidence of the Complainant is that the Complainant's trade mark, NOVOPEN ECHO, was applied for in Denmark in November 2008 and the registration documents seem to indicate that the registration came through on January 12, 2009. The Domain Name was registered on January 19, 2009. Moreover, according to the Complainant (and not challenged by the Respondent) the Respondent effected the registration through a company named BuyDomain.dk LLC, which from its name (the “.dk” suffix) clearly has Danish connections.
Had the Complainant's trade mark been a descriptive word or phrase, the Panel might have been prepared to accept that the registration of the Domain Name was simply a coincidence. However, the Complainant's trade mark is both complex and unusual. Accordingly, the registration of the Domain Name, coming as it did so closely following the registration of the Complainant's Danish trade mark and via a Danish company, in the view of the Panel, has to have been inspired by the registration of the trade mark. The fact that the Respondent has chosen not to respond to the Complainant's allegations renders the matter beyond doubt insofar as the Panel is concerned.
Why did the Respondent register the Domain Name? The Panel has already found as a fact that the registration of the Domain Name was prompted by the registration of the Complainant's trade mark. But for what purpose? After all, domain names are not registered without a purpose.
An obvious first step is to look at how the Domain Name is being used, but clearly the Domain Name and the use being made of it (see section 4 above) have no connection. In the absence of any explanation from the Respondent the Panel is left to conclude that the Respondent registered the Domain Name intending to take advantage of the Complainant's trade mark rights in some way.
The Complainant contends that the Respondent's intention was to disrupt the Complainant's launch of its new NovoPen Echo product. That may be so or it may be that the Respondent hoped to sell the Domain Name to the Complainant at a profit. Either way, the evidence supports the view that the Domain Name was registered for an abusive purpose directed at the Complainant. The purpose is likely to have been a commercial purpose in that private individuals are unlikely to keep a watchful eye on the state of the trade mark register, as this registrant must have done, and the Respondent's name is not a name that one would expect a private individual to select. In these circumstances, in the view of the Panel, the Domain Name constitutes a continuing and unjustifiable commercial threat hanging over the head of the Complainant while it remains in the hands of the Respondent.
The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) 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, <novopenecho.com>, be transferred to the Complainant.
Tony Willoughby Sole Panelist
Dated: June 26, 2009
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