WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pfizer Holding France v. Company PrivacyProtect.org/ASUS
Case No. D2008-0311
1. The Parties
The Complainant is Pfizer Holding France of Paris, France, represented by Inlex IP Expertise, France.
The Respondents are ASUS of New York, New York, United States of America, and Company PrivacyProtect.org of Morgestel, the Netherlands.
2. The Domain Name and Registrar
The disputed domain name <la-sante-d-age-en-age.com> (the “Domain Name”) is registered with EstDomains, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on February 29, 2008 and in hard copy on March 4, 2008. As filed, the Complaint identified the Respondent as “Company PrivacyProtect.org”.
The Center transmitted its request for registrar verification to the Registrar by email on March 4, 2008. The Registrar replied on March 4, 2008, 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 would remain on registrar lock during this proceeding, and that the registration agreement was in English. The Registrar also provided the full contact details in respect of the registration on its database and stated that the registration agreement did not contain a submission to the jurisdiction at its principal office. The contact details provided by the Registrar identified the registrant as having the Id “7047713” and the Name “asus”.
By email of March 7, 2008, the Center drew the Registrar’s attention to the difference between the name of the Respondent as identified in the Complaint and the name of the registrant in the contact details on its database, and asked it to confirm the exact name and contact details of the registrant. The Registrar replied on March 10, 2008, stating “The Privacy Protect mode is on. The information I indicated in my last letter is the information from our Registrar panel”.
By email of March 10, 2008, the Center invited the Complainant to submit amendments to the Complaint, (a) adding the name of the registrant according to the information provided by the Registrar as a Respondent, and (b) submitting to the jurisdiction at the location of the registrant’s address on the Registrar’s database. The Complainant filed an amendment to the Complaint by email on March 13, 2008, and in hard copy on March 20, 2008, and a revised amendment by email on March 18, 2008.
The Center verified that the Complaint together with the revised amendment to 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 20, 2008. The notification appears to have been transmitted successfully to the email addresses in the contact details in the Registrar’s database. In accordance with paragraph 5(a) of the Rules, the due date for Response was April 9, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 10, 2007.
The Center appointed Jonathan Turner as the sole panelist in this matter on April 17, 2008. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. 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 has registered the trademark LA SANTE D’AGE EN AGE in France and uses this mark to promote the concept of preservation of each person’s “health capital”. The Complainant has also registered the domain names <la-sante-d-age-en-age.fr>, <la-sante-d-age-en-age.net> and <la-sante-d-age-en-age.org>, which are directed to its website promoting the concept.
The Respondent has registered the Domain Name and directed it to a website which offers a pain relief medication under the mark ULTRAM.
5. Parties’ Contentions
The Complainant contends that it has registered rights in the mark LA SANTE D’AGE EN AGE; that the Domain Name is identical or confusingly similar to this mark; that the Respondent has no rights or legitimate interests in respect of the Domain Name or any corresponding name; and that the Domain Name was registered and is being used in bad faith, in particular to divert Internet users by confusion with the Complainant’s mark to the Respondent’s website offering competing products for commercial gain.
As noted above, the Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. Each of these requirements will be considered in turn below.
In accordance with paragraph 14(b) of the Rules the Panel shall draw such inferences from the Respondent’s default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
A. Identical or Confusingly Similar
It is clear that the Complainant has registered rights in the mark LA SANTE D’AGE EN AGE in France. The Panel considers that the Domain Name is confusingly similar to this mark, from which it differs only in the substitution of hyphens for the spaces and apostrophe and in the addition of the top level domain suffix.
The first requirement of the Policy is satisfied.
B. Rights or Legitimate Interests
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name or any corresponding name. The Respondent has not used or made demonstrable preparations to use the Domain Name or any corresponding name for a bona offering of goods or services. On the contrary, the Respondent is using the Domain Name in bad faith to divert Internet users by confusion with the Complainant’s mark to its website offering an alternative product. This is not a bona fide offering within the meaning of the Policy: see e.g. Mentor ADI Recruitment Ltd (trading as Mentor Group) v. Teaching Driving Ltd, WIPO Case No. D2003-0654.
The Respondent has not been commonly known by the Domain Name. Nor is the Respondent making legitimate non-commercial or fair use of the Domain Name without intent to divert Internet users for commercial gain.
In the circumstances there is no other basis on which the Respondent can claim to have rights or legitimate interests in respect of the Domain Name or any corresponding name.
The second requirement of the Policy is satisfied.
C. Registered and Used in Bad Faith
The Panel finds that the Respondent is using the Domain Name intentionally to attract Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website, for the purpose of commercial gain from sales of a competing product. This constitutes evidence of bad faith registration and use in accordance with paragraph 4(b)(iv) of the Policy.
There is nothing which contradicts this evidence. In the circumstances, the Panel concludes that the Domain Name was registered and is being used in bad faith.
The third requirement of the Policy is satisfied.
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 <la-sante-d-age-en-age.com> be transferred to the Complainant.
Dated: May 2, 2008