Under paragraph 11(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), unless otherwise agreed by the parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement. In the present case, the language of the Registration Agreement is English. Complainant submitted its Complaint in English and requested that the language of the proceeding be English. As the language of the registration agreement is English, the Panel has decided to accept Complainant’s filing in English and issue a decision in English.
In the opinion of the Panel the disputed domain name is confusingly similar to Complainant's trademark (Policy, Par. 4 (a)(i)). Many UDRP decisions have found that a disputed domain name is identical or confusingly similar to a complainant’s trademark where the disputed domain name incorporates the complainant’s trademark or the principal part thereof. Complainant has established that it is the owner of trademark registrations for NOVARTIS. The disputed domain name incorporates the well-known NOVARTIS trademark as its distinctive element, with a misspelling by removal of the letters “t” and “i” of the trademark, combined with the generic and descriptive term “pharma”. The gTLD “.com” in the disputed domain name may be disregarded.
The Panel notes that Complainant’s registration of its trademark predates the creation date of the disputed domain name.
In the opinion of the Panel Complainant has made a prima facie case that Respondent lacks rights or legitimate interest in the disputed domain name. Complainant has not licensed or otherwise permitted Respondent to use its trademarks or to register the disputed domain name incorporating its marks. Respondent is not making a legitimate non-commercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks of Complainant. Respondent is not commonly known by the disputed domain name nor has it acquired trademark rights. Complainant has no relationship with Respondent. Based on the undisputed submission and evidence provided by Complainant at the time of the decision there is no website under the disputed domain name. Under these circumstances, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name (Policy, Par. 4 (a)(ii)).
The Panel finds that the disputed domain name has been registered and is being used in bad faith (Policy, Par. 4(a)(iii)). Complainant has rights in the NOVARTIS trademark. Respondent knew or should have known that the disputed domain name is confusingly similar to Complainant’s well-known mark. The Panel notes that there is at the time of the decision no active website at the disputed domain name. Such passive holding of the disputed domain name does not prevent the Panel from finding registration and use in bad faith. The Panel further notes that the current undeveloped use of the website and the prior use of the website under the disputed domain name which incorporates with a misspelling the distinctive part of Complainant’s trademark indicates that Respondents possibly registered the disputed domain name with the intention to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trademark of Complainant as to the source, sponsorship, affiliation, or endorsement of its website or location, which constitutes registration and use in bad faith.
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