The Complainant is Sanofi-aventis, Gentilly Cedex, France; and Aventis Inc., Delaware, United States of America, represented by Selarl Marchais De Candé, France.
The Respondent is Alex Dilan, Dallas, Texas, United States of America.
2. The Domain Name and Registrar
The disputed domain name <allegra-fexofenadine.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 23, 2010. On April 23, 2010, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On April 23, 2010, eNom. 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 April 27, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 17, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 19, 2010.
The Center appointed Nicolas Ulmer as the sole panelist in this matter on June 9, 2010. 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
Sanofi-aventis is a major international pharmaceutical concern which is the result of a 2004 merger between Aventis SA and Sanofi-Synthelabo. Following this merger, Sanofi-aventis became one of the leading pharmaceutical groups in Europe and worldwide, present in over 100 countries and with employees numbering over 100,000. The other Complainant is an affiliate of this company.
Allegra, a product of Sanofi-aventis, is a drug created to treat allergies and was launched by Aventis SA before the merger.
Complainants are the owners of at least four trademarks regarding Allegra: Canadian trademark ALLEGRA no. TMA 492711, registered on April 9, 1998, Canadian trademark ALLEGRA-D no. TMA 542661 filed on March 19, 2001, United States trademark ALLEGRA no. 2067728 filed on June 3, 1997 and United States trademark ALLEGRA-D no. 2157669 filed on November 1, 1996. It is also in possession of the domain names <allegra.com>, <allegra.us>, both registered on or before April 19, 2002.
Respondent, Alex Dilan, registered, with the registrar eNom, Inc. the disputed domain name <allegra-fexofenadine.com> on June 12, 2009.
5. Parties' Contentions
A. Complainants
Complainants, on June 12, 2009, became aware that Respondent had registered the domain name <allegra-fexofenadine.com>. Complainants are among the largest drug manufacturers in the world and market and sell their product, Allegra, in over 55 countries around the world. The disputed domain name, <allegra-fexofenadine.com>, is used to display a blog, titled “Generic Allegra (Fexofenadine) Detailed Reviews” and contains various blog entries and a category, “allegra fexofenadine”. Fexofenadine is the active ingredient in Allegra; thus its addition to the disputed domain name adds to the identification and confusion with Complainants' trademark. It also contains links to external sites which sell pharmaceutical products, including Complainant's drug Allegra. The external sites, with titles such as “Ultimate Pill Store” and “Generics Supplier”, offer “Generic Allegra” in various quantities and doses. These linked-to websites also appear to offer generic drugs of competitors of Complainants, and therefore improperly trade on Complainants' name, marks and reputation.
Complainants request that the disputed domain name be cancelled.
B. Respondent
The Respondent did not reply to the Complainants' contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, Complainants must prove the following:
(i) Respondent's domain name is identical or confusingly similar to a trademark or service mark in which Complainants have rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) Respondent's domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The domain name here in dispute contains the full trademark of Complainants, ALLEGRA. The Panel here agrees with the reasoning set out in Oki Data Americas Inc v. ASD Inc.,WIPO Case No. D2001-0903, which states that “when a domain name incorporates a complainant's mark in its entirety, it is confusingly similar to that mark despite the addition of other words.” Leading to further confusion, the second part of the textual string of the domain name is the active ingredient in the drug, fexofenadine (fexofenadine hydrochloride). In a previous decision, it was stated that the “use of such term enhances the connection” in relation to a domain name which incorporates the name of a prescription drug and its active ingredient (Aventis Inc, Sanofi-aventis Deutschland GmbH, Sanofi-aventis v. Brad Pittersones, WIPO Case No. D2008-1076). The same is true here.
The Panel here finds the domain name to be confusingly similar to Complainants' trademark.
B. Rights or Legitimate Interests
Complainant submits that it has never granted Respondent the right to use its trademark. There is no evidence or inference that Respondent is entitled to the use of the ALLEGRA mark. Moreover, the textual string of the disputed domain name does not present any similarity with Respondent's own name; to the contrary, all evidence and inferences indicate that Respondent has no rights or legitimate interests in the disputed domain name. The website accessed by the disputed domain name does not contain any bona fide offering of goods or services that could, under paragraph 4(c)(i) of the Policy, confer any rights in the domain name to Respondent. Furthermore, although Respondent was provided with an opportunity to file a Response it has not elected to do so, and thus has not refuted Complainants' case with regard to this element.
The Panel here finds that Respondent does not have any rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Complainant has provided images of the website connected to the disputed domain name as well as of those linked to it. The Panel finds these images to be accurate. The website is used for a blog site which appears to contain some entries devoted to health and drug related issues. The trademark ALLEGRA is used multiple times and there is a category labeled “allegra fexofenadine”. The site also provides links to online pharmacies, offering Allegra as well as a variety of other drugs, not all related to allergy relief. The linked-to pharmacies display pictures of Complainants' product and freely use the name of the drug. Respondent, through the use of Complainants' trademark as well as the name of the active ingredient of the drug, attempts to draw in customers and link them to an alternative source for purchase of Complainants' product.
It is evident that Respondent's registration of the disputed domain name in June of 2009 was with knowledge of Complainant's marks and reputation, and in bad faith. Furthermore, based on the content of the website and the decision from America Online, Inc. v. Anson Chan,
WIPO Case No. D2001-0004, the Panel here finds that Respondent had prior knowledge of the Complainants' trademark and used it for his own commercial gain by diverting Internet users to alternative sources for a generic version of the Complainants' product.
The Panel accordingly finds that the disputed domain name to be registered and 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 disputed domain name <allegra-fexofenadine.com> be cancelled.
Nicolas Ulmer Sole Panelist
Dated: June 23, 2010
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