WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Novartis AG v. Ashwanth Nodar
Case No. D2021-4299
1. The Parties
The Complainant is Novartis AG, Switzerland, represented by Inttl Advocare, India.
The Respondent is Ashwanth Nodar, United States of America (the “United States”).
2. The Domain Name and Registrar
The disputed domain name <novartiscareerconsultancy.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 15, 2021. On December 20, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 21, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 22, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint amending the mutual jurisdiction section on December 21, 2021, and an amendment to the Complaint on January 10, 2022.
The Center verified that the Complaint together with the amended complaint and the amendment to 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 11, 2022. In accordance with the Rules, paragraph 5, the due date for Response was January 31, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 1, 2022.
The Center appointed Kaya Köklü as the sole panelist in this matter on February 4, 2022. 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 Complainant is a renowned healthcare company with its registered seat in Switzerland. The Complainant’s group is active globally and achieved an annual turnover of almost USD 50 billion in 2020 (Annex 6 to the Complaint).
The Complainant is the owner of the widely known NOVARTIS trademark, which is registered in a large number of jurisdictions since 1996 (Annex 9 to the Complaint). For instance, the Complainant is the owner of United States Trademark Registration No. 2336960, registered on April 4, 2000 and the International Trademark Registration No. 663765, registered on July 1, 1996, designating a large number of jurisdictions.
Furthermore, the Complainant holds and operates various domain names incorporating the NOVARTIS trademark, including <novartis.com> and <novartis.us> (Annex 10 to the Complaint).
The disputed domain name was registered on August 31, 2018.
The Respondent is reportedly an individual from the United States.
As evidenced by screenshots in the Complaint (Annex 14 to the Complaint), the disputed domain name resolves to a website in English language that prominently uses the Complainant’s NOVARTIS trademark and offers career and consultancy services, without providing for a visible disclaimer describing the (lack of) relationship between the Parties. At the associated website, Internet users are invited to submit contact details and personal information, literally it is stated “Drop your details here, our Executive will contact you further” (Annex 14 to the Complaint).
5. Parties’ Contentions
The Complainant is of the opinion that the disputed domain name is confusingly similar to its NOVARTIS trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complainant’s contentions. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the consensus views captured therein.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has registered trademark rights in the mark NOVARTIS by virtue of a large number of trademark registrations worldwide, including in the United States, where the Respondent is reportedly located.
The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark, as it fully incorporates the NOVARTIS trademark. As stated at section 1.8 of the WIPO Overview 3.0, where the relevant trademark is recognizable within the disputed domain name, the addition of other terms does not prevent a finding of confusing similarity. The mere addition of the terms “career” and “consultancy”, does, in view of the Panel, not serve to prevent a finding of confusing similarity between the disputed domain name and the Complainant’s NOVARTIS trademark.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
While the burden of proof on this element remains with the complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. See, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s NOVARTIS trademark in a confusingly similar way within the disputed domain name.
In the absence of a Response, the Respondent has failed to demonstrate any of the nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c), or provide any other evidence of rights or legitimate interests in the disputed domain name. Quite the contrary, and bearing in mind the notoriety of the Complainant’s NOVARTIS trademark, the Panel cannot exclude that job seekers, who are interested in job openings and career opportunities at the Complainant, will be misled, particularly as the website associated to the disputed domain name prominently uses the NOVARTIS trademark. The lack of disclaimer as to the lack of affiliation to the Complainant further reinforces the Panel’s finding that the use is not a bona fide offering and rather an attempt to mislead Internet users for the Respondent’s commercial gain.
In this regard, the Panel also notes that the nature of the disputed domain name carries a risk of implied affiliation or association, as stated in section 2.5.1 of the WIPO Overview 3.0.
Bearing all this in mind, the Panel does not see any basis for assessing a bona fide offering of goods or services by the Respondent.
As a conclusion, the Panel finds that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Noting the composition of the disputed domain name, the Panel believes that the Respondent had the Complainant and its NOVARTIS trademark in mind when registering and using the disputed domain name. It appears that the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant and its services.
In this regard, the Panel additionally notes that the Respondent has not published a visible disclaimer on the website linked to the disputed domain name to explain that there is no existing relationship between the Respondent and the Complainant. Rather, the prominent use of the Complainant’s NOVARTIS trademark on the website associated to the disputed domain name as well as the nature of the disputed domain name is, in view of the Panel, sufficient evidence that the Respondent intentionally tries to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant as to the source, sponsorship, affiliation or endorsement of its website. In fact, and as already indicated above, the Panel cannot exclude that by offering “Novartis Career Consultancy”, the disputed domain name is intended to be or may already has been used for obtaining personal information and data of misled job seekers for illegitimate purposes.
Finally, the Panel finds that the Respondent’s failure to respond to the Complainant’s contentions additionally supports the conclusion that it has registered and is using the disputed domain name in bad faith. The Panel is convinced that, if the Respondent had legitimate purposes in registering and using the disputed domain name, it would have probably responded.
Taking all facts of the case into consideration, the Panel concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
For 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 <novartiscareerconsultancy.com> be transferred to the Complainant.
Date: February 18, 2022