The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).
The Panel is satisfied that the Respondent has acted in bad faith. It is noted, on the basis of the evidence presented by the Complainant, that the Respondent has registered a large number of domain names relating to pharmaceutical products or health issues. While this is not evidence of a pattern of conduct for the purposes of para 4(b)(ii) of the Policy (as, at first glance, most of the other domain names neither relate to the Complainant nor present a prima facie violation of the Policy), the Respondent can on this basis reasonably be assumed to be aware of the Complainant's activities, as the Complainant is a famous and globally-operating company in this sector. Moreover, the Respondent must have been aware (or readily capable of becoming aware of) the specific combination of 'ask' and 'novartis' in the Complainant's long-established web presence (as already outlined, above). It is further noted that the Respondent has supplied an address in Canada, while the Complainant's 'Ask Novartis' web presence also relates to its Canadian operations and domain name.
The Respondent has neither participated in these proceedings nor responded to the Complainant's efforts to establish contact; indeed, it is likely, on the basis of the Provider's attempts to contact the Respondent, that an incomplete address was supplied at the point of registration.
The Panel also notes the Complainant's contention, supported by authority, that the NOVARTIS mark is distinctive and well-known, and has been acknowledged as such in various decisions made under the Policy.
The disputed domain name is currently being used for an 'under construction' web page, with the text "Website coming soon!
Please check back soon to see if the site is available". The Complainant points to the decision in WIPO AMC D2000-0003, Telstra Corporation v Nuclear Marshmellows, the much-cited early consideration of the application of the Policy in cases of 'passive holding' of domain names. The Panel accepts the relevance of this line of cases, and in particular that of the non-exclusive factors set out in the WIPO Jurisprudential Overview, version 3, para 3.3 ((i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put)), all four are found.
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