FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENTS:
The Complainant H. Lundbeck A/S is an international pharmaceutical company engaged in the research, development, production, marketing and sale of pharmaceuticals across the world. The company's products are targeted at disorders such as depression and anxiety, psychotic disorders, epilepsy and Huntington's, Alzheimer's and Parkinson's diseases.
Lundbeck was founded in 1915 by Hans Lundbeck in Copenhagen, Denmark. Today Lundbeck employs approximately 6,000 people worldwide. Lundbeck is one of the world's leading pharmaceutical companies working with brain disorders. In 2011, the company's revenue was DKK 16.0 billion (approximately EUR 2.2 billion or USD 3.0 billion). For more information, reference is made to the official website www.lundbeck.com.
Lundbeck markets a number of different pharmaceuticals for the treatment of brain disorders. The most recently launched compounds include: Cipralex/Lexapro® (depression), Ebixa® (Alzheimer’s disease), Azilect® (Parkinson’s disease), Xenazine® (chorea associated with Huntington's disease), Sabril® (epilepsy), Sycrest® (bipolar disorder) and Onfi® (Lennox-Gastaut syndrome).
In addition to being part of the Company name, Lundbeck (fig) ® is a registered trademark that is used as the house mark of the Complainant in connection with the use of the specific brand names. Together with a Complaint, copies of the Complainant´s international registration of Lundbeck (fig) ® under the Madrid-Protocol were presented. The regostration covers inter alia the apparent country of residence of the Respondent, Australia. The Complainant is also established in Australia as shareholder in LUNDBECK AUSTRALIA PTY LTD.
The Complainant has filed an application with ICANN for the .lundbeck gTLD. ICANN published the list of the applications on June 13, 2012 and the contested domain names were registered on June 14, 2012.
Due to the almost simultaneous registration of the contested domain names, the use of the same Registrar, the use of the same Proxy services and the identical use of the domain names the Complainant asserts that the Registrant of the three domain names is in fact the one and the same entity. The three contested domain names can thus be covered by the same Complaint, see UDRP Policy § 4 f.
A. The domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(Policy, Paragraph 4(a)(i); Rules, Paragraphs 3(b)(viii), (b)(ix)(1))
The Complainants registered trademark is a combined mark consisting of the name Lundbeck in stylized letters and a figurative element.
Lundbeck is the only word element in the mark and is a dominant part of the mark and must be regarded as distinctive per se. Since figurative, stylized or design elements in a trademark are generally incapable of being “represented” in a domain name, such elements shall be disregarded for the purpose of assessing identity or confusing similarity under the UDRP. The relevant assessment shall thus be between the alpha-numeric components of the domain name, and the dominant textual component of the mark. Reference is particularly made to the quite similar case: Which? Limited v. Whichcar.com c/o Whois Identity Shield / Vertical Axis, Inc, WIPO Case No.D2008-1637, <whichcar.com>. See Also Dreamstar Cash S.L. v. Brad Klarkson, WIPO Case No.D2007-1943, <gals4free.com>, Nathalie et Jacques ARIGGO, Coutellerie du Petit-Chêne et Heidi-Shop v. M. Gerard Praplan, WIPO Case D 2003-0672 < eidi.com>, Delikomat Betriebsverpflegung Gesellschaft m.b.H v. Mr. Alexander Lehner, WIPO Case D 2001-1447 <delikomat.com> and EFG Bank European Financial Group SA v. Jacob Foundation, WIPO Case D 2000-0036 <efgprivatebank.com et. al>.
The contested domain names are thus confusingly similar to the trademark Lundbeck®, in which the complainant holds rights. The domain names incorporates the complainant´s registered trademark combined with the generic and descriptive terms “domain” & “domains” and the suffix “nic” which in this connection to the best of the Complainants belief is an acronym for “network information center”. The Complainant claims that for the purpose of a UDRP proceeding, when a well-known and invented mark is combined with a common noun or adjective, that combination constitutes a domain name which is confusingly similar to an invented and well known mark.
Also, the Complainant asserts that it is an established and recognized principle under the UDRP that the presence of the .com top level domain designation is irrelevant in the comparison of a domain name to a trademark.
B. The Respondent has no rights or legitimate interests in respect of the domain names;
(Policy, Paragraph 4(a)(ii); Rules, Paragraph 3(b)(ix)(2))
The Respondent has not received any license or consent, expressed or implied, to use the complainant´s trademark Lundbeck®, in a domain name or in any other manner from the Complainant, nor has the Complainant acquiesced in any way to such use or application by the Respondent. At no time did the Respondent have authorization from the Complainant to register the disputed domain names.
Further, to the best knowledge of the Complainant, the Respondent has no legitimate right in the contested domain names. The Respondent did thus not use the domain name as a trademark, company name, business or trade name prior to the registration of the disputed domain name, nor is the Respondent otherwise commonly known in reference to the name.
Also, to the best knowledge of the Complainant, the Respondent has no legitimate interest in the contested domain names. The Respondent does not use the domain names in connection with a bona fide offering of goods and services, nor does the Respondent “make a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue” as stated in § 4 c of the UDRP. On the contrary all the three sites www.lundbeckdomain.com, www.lundbeckdomains.com and www.lundbecknic.com are standard parking sites containing a number of sponsored listings, that generates revenue to the Registrant (see further below).
C. The domain names were registered and are being used in bad faith.
(Policy, paragraphs 4(a)(iii), 4(b); Rules, paragraph 3(b)(ix)(3))
The Complainant claims that because of the distinctive nature and intensive use of the Complainant´s trademark Lundbeck®, and because of fact that the contested domain names were registered the day after ICANN published the list of applicants for new gTLDs – one of the applicants being the Complainant - the Respondent had positive knowledge as to the existence of the Complainant’s trademark at the time the Respondent registered the domain name.
Further, as mentioned above the Respondent uses the domain names to divert Internet traffic to sites that are standard parking sites containing a number of sponsored listings. According to http://www.sedoparking.com/ ,which is the provider for the parking sites:
“Domain Parking is a simple way to earn money from your domains' natural traffic. If you have registered domain names, but they are not currently being used, then domain parking is a great way to put those domains to work, earning you revenue. You can make money without even lifting a finger! The idle domain is used to display relevant advertisements - every time a consumer clicks on one of the advertisements, you earn money,”
By doing this the Complainant claims that Respondent intentionally attempts to attract for commercial gain, Internet users to the Respondent’s websites by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s websites.
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