PARTIES' CONTENTIONS:
The Parties' contentions are the following:
COMPLAINANT:
PROTECTED RIGHTS RELIED UPON
The Complainant has extensive "DULCOLAX" trademark rights for goods in classes 1 and 5. For purposes of this proceeding, the Complainant relies on rights in various jurisdictions and refers to previous decisions where Panels have found that registration of a mark with a trademark authority, regardless of the location of the parties, is sufficient evidence of having rights in such mark. The Complainant further states that previous panel decisions have generally held that trademark registrations are valid and constitute prima facie evidence of ownership, validity and the exclusive right to their use.
IDENTITY
The Complainant claims that Complainant's trademarks are identical to the disputed domain name (save to the top-level suffix in the disputed domain name), which is clearly evident.
Furthermore, the Complainant argues that the “.TOP” suffix is not sufficient to escape the finding that the domain name is identical to the Complainant's trademarks and does not change the overall impression of the designation as being connected to such trademarks.
NO RIGHTS OR LEGITIMATE INTERESTS
The Respondent has not been commonly known by the disputed domain name. Neither the Complainant has been authorized, permitted or licensed the Respondent to use its trademarks in any manner. The Respondent has no connection or affiliation with the Complainant whatsoever. On this record, Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the meaning of paragraph 4(c)(ii) of the Policy.
The Complainant refers to previous domain name decisions contending that the Complainant is required to make out a prima facie case that the Respondent lacks rights or legitimate interests; once such prima facie case is made, the burden shifts to the Respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name.
Domain name website redirects to the website named Canadian Pharmacy on the address (URL) http://safecanadianrx.com/ that offers to internet users Dulcolax pills, as in more detail described above. Such website also offers for sale many other pharmaceutical products, and so is attracting Internet users (through the fame of the Complainant’s trademark) who are then offered a wide range of unrelated products.
BAD-FAITH REGISTRATION AND USE
Seniority of Complainant's trademarks predates the disputed domain name registration and such trademarks are well known in relevant business circles. The Respondent can be considered to be aware of the Complainant's trademark when registering the domain name, as also follows from the content presented on the disputed domain website and a fact, that the Complainant's trademarks have been registered in then the Trade Mark Clearing House (TMCH) on 16 April 2014.
The Respondent attempts to attract, for commercial gain, Internet users to its website or to the websites linked thereto, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of their websites and of the products promoted therein. Therefore, the requirement of bad faith registration and use of the disputed domain name pursuant to paragraph 4(a)(iii) of the Policy has been met.
The Complainant presents the following evidence which has been assessed by the Panel:
- Excerpts from WIPO and other databases regarding Complainant's trademarks;
- Excerpts on the disputed domain name from WHOIS database;
- Screenshots of the disputed domain name website with the Respondent's content.
RESPONDENT:
The Respondent has not provided any response to the complaint.
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