PARTIES' CONTENTIONS:
COMPLAINANT:
The Complainant contends that the disputed domain name was redirected to a website that promotes purchasing a substitute for Provigil by re-directing the domain to http://www.modafinilfacts.com/ where visitors are encouraged to "Visit our online store“ by clicking a button that lands on https://modapharma.com, an online pharmacy, offering purported generic substitutes.
With that, the Respondent is luring consumers in search of the well-known PROVIGIL brand to competitive products.
Whereas the trademark and the disputed domain name are similar and the use of the disputed domain name is not legitimate, the use also shows bad faith since the Respondent is attempting to attract, for commercial gain, Internet users to its web site or to the web sites linked thereto, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of their web sites and of the products promoted therein.
RESPONDENT:
The Respondent did not dispute the claim or argued to be able to keep the disputed domain name, but declared his willingness to give up this domain name. He had contacted Complainant´s representative and offered to transfer the domain name free of charge. Furthermore, he declares that he had registered the domain name 12 years ago. So far the Complainant had not objected to it. The websites allegedly did not sell the PROVIGIL product but had only advertisements on them. In “About us” it was always said that there is no connection to Cephalon, Teva, or any other manufacturer of pharmaceuticals. The Respondent claims to have made an effort to make sure that website visitors were not confused.
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