The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy). More specifically, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and the burden of prove then shifts to the Respondent to show it does have rights or legitimate interests. See PepsiCo, Inc. v Smith power production, 102378, (CAC 2019-03-08) ("The Panel finds that the Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against the Respondent. As the Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.").
First, the Complainant claims that it has never had any previous relationship with the Respondent nor granted any permission to the Respondent to use the NOVARTIS trademark. In addition, the Complainant further claims that the Respondent is not commonly known by the disputed domain name and the name of the Respondent is not related to the Complainant nor the term "Novartis". It is very likely that the intentions for the Respondent to register the disputed domain name with Complainant's trademark and the industrial related gTLD is to create confusion among the Internet users.
The Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The burden of proof has been shifted to the Respondent to prove that it has right or legitimate interests to the disputed domain name.
The Respondent rebuts that the current proceeding was initiated within 1 month after the domain registration and the allegation by the Complainant is immature and not supported with sufficient support. There is zero evidence of damage of dilution to the Complainants brand and trademark due to the Respondent's purchase of the disputed domain name.
Paragraph 4(c) of the Policy listed some common circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate Respondent's rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel is of the view that the Respondent fails to demonstrate its rights or legitimate interests to the disputed domain name and has not provided any reasonable excuse for registering the disputed domain name which incorporates Complainant's trademark as well as the industrial related gTLD ".health", see paragraph 2.14.1 of the WIPO Overview 3.0 ("Particularly when the TLD is descriptive of or relates to goods or services (including their natural zone of expansion), a geographic region, or other term associated with the complainant, the respondent’s selection of such TLD would tend to support a finding that the respondent obtained the domain name to take advantage of the complainant’s mark and as such that the respondent lacks rights or legitimate interests in the domain name.").
For the foregoing reasons, the Panel finds the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
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