A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner.
The Complainant has provided evidence of its trademarks’ registrations of the NOVARTIS mark in China.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The disputed domain name <hbnovartis.com> integrates the Complainant’s NOVARTIS trademark in its entirety with the addition of the letters „hb“ which are devoid of significance and fail to sufficiently distinguish the disputed domain name from the Complainant’s trademark (see Wal-Mart Stores, Inc. v. Kuchora, Kal, WIPO Case No. D2006-0033; Hoffmann-La Roche Inc. v. Andrew Miller, WIPO Case No. D2008-1345).
B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the complainant to show that the respondent has no rights or interests in respect of the Domain Name.
Once the complainant establishes a prima facie case that the respondent lacks rights or legitimate interests in the Domain Name, the burden of production shifts to the respondent to show that it has rights or legitimate interests in respect to the Domain Name (see WIPO Overview 3.0, paragraph 2.1).
In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and the Respondent has failed to assert any such rights or legitimate interests.
The Complainant has provided evidence that Respondent, identified as “ li dong qun” in the Whois register, is not commonly known by the disputed domain name, the Respondent was not authorized or licensed to use the NOVARTIS trademark in any manner. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy 4(c)(ii) based on the WHOIS information and other evidence in the record). Moreover, the use of the disputed domain name as a landing page for gambling services is not a clear bona fide use of the disputed domain name. Since the Respondent has not submitted a response and did not provide any evidence to show any rights or legitimate interests in the disputed domain name or an explanation to rebut the Complainant’s prima facie case the Panel is therefore of the view that the Respondent has no rights or legitimate interests in respect of the disputed domain name and accordingly, paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the complainant to show that its Domain Name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy.
The Complainant has submitted evidence that the Respondent registered the disputed domain name long after the Complainant registered its trademarks. The Complainant’s evidence has shown that it owned the trademark since 1996 whereas the disputed domain name was only registered in March 2019. Under these circumstances, the Complainant's prior registered trademark is suggestive of the Respondent's bad faith (see Sanofi-Aventis v. Abigail Wallace, WIPO Case No. D2009-0735).
The Complainant provided evidence showing that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location. Complainant has provided evidence that the disputed domain name that is confusingly similar to the Complainant’s trademark redirects Internet users to another Chinese lottery website <GD55.com> which redirects to various domains such as <gd5552.com> and <gd3366.com>, both of which are the same websites of 光大彩票 (Guang Da Lottery / Everbright Lottery).
The Complainant has also provided evidence of correspondence with the Respondent sent prior to the commencement of this proceeding. The Complainant issued a cease-and-desist letter to the Respondent by way of e-mail on its website and via an online contact form. When these methods failed, the Complainant contacted the Registrar and requested for the letter to be forwarded to the Respondent. In all of these instances, the Respondent did not respond to the letters. The Respondent did not submit a Response in this proceeding. This is a further indication of the Respondent’s bad faith.
Further, the Panel notes that the Respondent is using a privacy shield to conceal its information and hide its identity. Given also that NOVARTIS is a distinctive mark which is a made-up word that does not have any meaning, the Respondent's behavior is clear evidence of bad faith registration and use of the disputed domain name.
Based on the evidence presented to the Panel, including the registration of the disputed domain name long after the registration of the Complainant’s marks, the confusing similarity between the disputed domain name and the Complainant’s marks, the Respondent’s use of the disputed domain name, the Respondent’s failure to present any credible rationale for registering the disputed domain name, and the fact that is no plausible good faith use the Respondent can put the disputed domain name to, the Panel finds that the disputed domain name was registered and is being used in bad faith.
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