Under paragraph 4(a)(ii) of the Policy, a Complainant must prove that the Respondent has no rights or legitimate interests in respect of the domain name. The non-exhaustive grounds upon which it may rely are set out in paragraph 4(c) of the Policy and so the following may evidence rights or legiti-mate interests: (i) a bona fide offering of goods or services; (ii) being commonly known by the name; and (iii) making legitimate non commercial or fair use of the domain name.
The first category of bona fide offering encompasses third parties such as resellers, sales agents and licencees who have a right in law to use the mark in issue. The third category maps to the various defences in international trade mark norms for free speech and descriptive and nominative use of marks. Both are potentially engaged here merely on the face of the matter.
The Complainant's submitted evidence shows the disputed domain name used to resolve to a page which used to show the following topics listed:
“Drug Treatment, Lung cancer Clinical Trials, Lung Cancer Treatment, Idiopathic Pulmonary Fibrosis, Melanoma Clinical Trials, Cancer Drug, Treatment of Breast Cancer, Lung cancer Side Effects, Breast Cancer Onocology, What is Pulmonary Fibrosis.”
Furthermore, the page to which the disputed domain name previously resolved also displayed a sen-tence: “The Sponsored Listings displayed above are served automatically by a third party. Neither Parkingcrew nor the domain name owner maintain any relationship with the advertisers”.
That is all that’s known to the Panel. In that regard it should be noted that the disputed domain name no longer resolves to any webpage. Given that the Respondent has not filed any response whatsoever (although the Respondent has been duly served in accordance with the Rules) the Panel has no doubt that this failure to resolve is a result of a Takedown Notice from the Complainant to an internet intermediary.
Nevertheless, the Complaint is vague on the question of prima facie legitimate rights or interests of the Respondent in the disputed domain name merely stating: “the disputed domain name displays sponsored links of Complainant’s activity” and “the disputed domain name points to a webpage dis-playing sponsored links or pay per click (“PPC”) in relation to the Complainant” (emphasis added).
As the Panel has no further information about the nature of the links which used to be displayed on a webpage to which used to resolve the disputed domain name, on 1 August 2016 the Panel made a request for further evidence from both parties. The deadline was 5 August 2016 but neither party responded.
Therefore, the Panel must decide whether the Complainant has managed to meet the burden of proof simply on the information and evidence provided in the Complaint. In that regard it should be noted the overall burden of proof rests with the Complainant and that the general standard of proof under the UDRP is on the balance of probabilities. Nevertheless, proving a negative can sometimes be an impossible task as information regarding the Respondent’s business is primarily within his or her knowledge.
The standard of proof under the UDRP requires that an asserting party must establish that it is more likely than not that the claimed fact is true. Conclusory statements or bare assertions which are not supported by evidence are not sufficient.
The Panel notes that the Complaint is drafted in very general terms indeed. There are on the face of it, scenarios which suggest legitimate rights or interests of the Respondent within the meaning of para-graph 4 of the Policy. For example,
if the links were to information about the various diseases listed including Idiopathic Pulmonary Fi-brosis, then this could be a legitimate or fair use even through the Complainant's mark is used to drive traffic to the page(s). This would be so even if that clicked through page mentioned, discussed or referenced various other prescription drugs that are used to treat the disease. This is as the drug may be referred to there in a nominative or descriptive sense. That is not trade mark use (use impact-ing the origin function of a trade mark). Use to discuss the pros and cons of a drug in treating a dis-ease or its side effects or other characteristics or otherwise to discuss it, is paradigm fair use. This re-flects the boundary between trade marks and speech- no-one has the right to stop people talking about (even negatively) the drug. The modern view is that moderate click related revenue or spon-sored advertisements do not prevent such use being considered primarily non-commercial in nature.
If the links were to advertisements for the Complainant's drug and the drug offered was the genuine drug, made by the Complainant, even if sold by an unofficial or unauthorized seller, or re-seller; this would also be legitimate use. This flows from the test in OKI Data, WIPO Case D2001 -0903, which has four requirements: (1) actual use of the domain name to offer the goods/services; (2) use to sell only the trade marked goods; (3) a disclaimer to explain accurately the relationship (or not) with the trade mark owner; (4) not corner the market in the domain names that reflect the trade mark. It would be relevant here that the .com is not used by the Respondent, so the disputed domain name does not purport to “impersonate” the Complainant or corner its commercial names. Under EU law, point (2) and (3) of the rule are too strict and as just as a bricks and mortar store can sell a range of competing products and advertise them by reference to their names and marks, provided it is in ac-cordance with honest practices, so too can online stores, in my view.
If the links were only to advertisements for drugs for Idiopathic Pulmonary Fibrosis made by compet-itors of the Complainant, then under EU law the test might be whether they were offered as alterna-tives (which are not confusing to consumers who understand that the offer is such) or imitations, see Interflora v Marks & Spencer Case C-323/09. However, UDRP panels (made up of trade mark law-yers) tend to take a more conservative view particularly where they find intent or targeting involved in revenue generating parking pages, despite the fact that parking pages are regarded more liberally than in the past due to changing business models online.
In any event, in this case, we do not know and the Complainant has not, even when requested by this Panel, clarified the position. I am not going to infer that if the answer had benefited its case, we might have it.
Nevertheless, as already mentioned above, in this particular case, the Panel has no further infor-mation about the disputed domain name and its use by the Respondent for the Respondent has not submitted any response. According to Paragraph 14 (b) if a party does not comply with request from the Panel, the Panel may draw such inferences as it considers appropriate. Therefore, the Panel is to decide the case based solely on evidence and information provided by the Complainant.
However, in light of the fact that on the Respondent’s webpage there was a statement claiming that all the links are advertisements and the Respondent maintains no relationship with the advertisers, the Panel finds on the balance of probabilities that the disputed domain name was used as a pay-per-click website. The Panel concludes that Respondent seeks to take unfair advantage of the value of the trademark. Thus, based on the evidence in the record and considering that the Respondent has not submitted a Response, the Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interest in the disputed domain name and this has not been rebutted.
The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the Domain Name (within the meaning of paragraph 4(a)(ii)of the Policy).
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