The Complainant is Intervet International B.V. of Boxmeer, the Netherlands, represented by Lowenstein Sandler PC, United States of America.
The Respondent is WEB SA of Miami Beach, Florida, United States of America.
The disputed domain name < finaplix.com> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 4, 2010. On May 5, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On May 5, 2010, GoDaddy.com, Inc. 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 May 7, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 27, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 28, 2010.
The Center appointed Michael J. Spence as the sole panelist in this matter on June 4, 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.
The Complainant is the registered proprietor of the trade mark FINAPLIX which it acquired from a different company that had been using it since 1987, each in relation to the sale of a veterinary anabolic product. The Complainant has used the mark widely: for example in 2008 and 2009 it spent over USD 1.2 million a year on the marketing of products under the mark or associated with it. The disputed domain name was initially registered in 1999 and, according to the concerned registrar, was registered by the Respondent on June 23, 2009. The Respondent is using the disputed domain name in relation to a site that sells, amongst other things, the Complainant's veterinary anabolic product, which the Complainant alleges is being sold with the apparent purpose of illegally supplying it for human use.
The Complainant claims that the disputed domain name is identical to its mark; that the Respondent has no rights or legitimate interests in the disputed domain name and is using it with the purpose of obtaining a commercial gain by deception; and that such deceptive use for commercial gain constitutes bad faith.
The Respondent did not reply to the Complainant's contentions.
The disputed domain name contains the Complainant's mark in its entirety. It is therefore identical to the Complainant's mark.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the UDRP Policy.
It is for the Complainant to establish, at least prima facie, that the Respondent has no rights or legitimate interests in the disputed domain name (Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110). The fact that the disputed domain name has been registered for some time means that this burden on the Complainant must be fully discharged.
Several features of this case satisfy that burden. These are: (i) that the Respondent is not an authorized reseller of the Complainant's products; (ii) that its use of the domain name does not meet the requirements laid down in numerous Panel decisions for sites involving the legitimate resale of trade marked goods (not least that the site does not make the relationship between the Complainant and the Respondent clear); and (iii) the significant reputation of the Complainant's mark and therefore the probability that the Respondent would, at the time of registration, have been aware of the strong likelihood of consumer confusion.
The Panel therefore finds that the Complainant has established the second element of paragraph 4(a) of the UDRP Policy.
That the Respondent must have been aware of the Complainant's mark at the time of the registration of the disputed domain name and that it nevertheless registered the disputed domain name for commercial gain, is clear evidence that the disputed domain name was registered and is being used in bad faith. This finding is also supported by the claim that the disputed domain name is being used for a site on which the Complainant's products are being supplied for an apparently illegal purpose, thereby potentially damaging the reputation of the Complainant's business.
The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the UDRP Policy.
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 <finaplix.com> be transferred to the Complainant.
Michael J. Spence
Dated: June 14, 2010