WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
BOEHRINGER Ingelheim Pharma GmbH & Co. KG v. Kelvin Baraka
Case No. D2016-0537
1. The Parties
The Complainant is BOEHRINGER Ingelheim Pharma GmbH & Co. KG of Ingelheim, Germany, represented by Nameshield, France.
The Respondent is Kelvin Baraka of Moscow, the Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <spiriva.top> is registered with GuangDong NaiSiNiKe Information Technology Co Ltd (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 18, 2016. On March 18, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 23, 2016, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on April 6, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 26, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 27, 2016.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on May 10, 2016. 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 pharmaceutical company founded in 1885 and incorporated in Germany, and is the manufacturer of an anticholinergic bronchodilator used in the management of chronic obstructive pulmonary disease, marketed and sold under the trade mark SPIRIVA (the "Trade Mark"). The Complainant is the owner of several international and national registrations for the Trade Mark, the earliest (international) registration number 692353 dating from April 1, 1998. The Complainant is also the owner of several domain names comprising the Trade Mark.
The Respondent is apparently an individual resident in the Russian Federation.
C. The Disputed Domain Name
The disputed domain name was registered on February 18, 2016.
D. The Website at the Disputed Domain Name
The disputed domain name has previously been resolved to various landing pages apparently with sponsored links to unrelated third party websites (the "Websites").
5. Parties' Contentions
The Complainant contends that the disputed domain name is confusingly similar or identical to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name comprises the Trade Mark in its entirety.
The Panel therefore finds that the disputed domain name is identical to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in respect of the Website which, without the Complainant's authorisation, seeks to capitalise on the Complainant's reputation in the Trade Mark by providing sponsored links to unrelated third party websites.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel therefore finds that the Respondent has failed to produce any evidence to rebut the Complainant's prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In light of the evidence of the Respondent's prior use of the Website in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy. At some stage following the filing of the Complainant, the Website has been taken down, which provides further support for the finding of bad faith.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith.
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 <spiriva.top> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: May 24, 2016