1. Confusing similarity of the disputed domain name to the Complainant's trademark
The Panel agrees that the disputed domain name is confusingly similar to the Complainant's trademark SERVIER as it includes it entirely and is followed by the abbreviation “pharm”, which stands for “pharmacy” or “pharmaceutical”. This additional term does not prevent a finding of confusing similarity as the trademark SERVIER is clearly recognizable within the disputed domain name and the abbreviation “pharm” refers to the Complainant’s business field (see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
In light of the above, the Panel is satisfied that the first condition under the Policy is met.
2. No rights or legitimate Interests
As also confirmed in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the Policy.
In this case, the Complainant brings forward the following elements:
- The Complainant did not grant any license or authorization in respect of the disputed domain name to the Respondent;
- The Complainant has no relationship whatsoever with the Respondent;
- The Respondent is not commonly known under the disputed domain name, nor does it have any trademark rights on such name.
In addition, the disputed domain name redirects to an error page. Therefore, there is no indication of any use of or preparations to use the disputed domain name in relation to a bona fide offering of goods or services. Lastly, lacking any authorisation from the Complainant, the use of a domain name, incorporating the Complainant’s distinctive trademark and uniquely associated to the Complainant, cannot amount to a legitimate or fair use of the domain name
In light of the above, the Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. Since the Respondent has not proved otherwise, the Panel is satisfied that also the second condition of the Policy is met.
3. Bad faith
In relation to bad faith, the Panel shares the Complainant’s view that the Respondent was well aware of the Complainant's mark and activity at the time of the registration of the disputed domain name. Indeed, the Complainant's trademark is uniquely associated to the Complainant, as it corresponds to the surname of its founder and consists in a fanciful word deprived of any meaning. Furthermore, the use of the SERVIER mark is longstanding and widespread, which entails that the mark enjoys reputation (as already determined by previous UDRP panels, see among others, WIPO Case No. D2016-2252, Les Laboratoires Servier v. Ping Chen, Chen Ping; WIPO Case No. D2019-1085, Les Laboratoires Servier v. Christina Ramsay). Lastly, not only the disputed domain name incorporates the Complainant’s trademark, but it also contains the suffix “pharm”, which refers to the Complainant’s activity. It is therefore more than clear that the Respondent was well aware of the Complainant’s trademark at the time it registered the disputed domain name. The incorporation of a well-known third party’s trademark in a domain name without rights and legitimate interests amounts to registration of the said domain name in bad faith.
With respect to use in bad faith, the Panel notes that the disputed domain name leads to an error page. The fact that the disputed domain name is currently not active cannot preclude a finding of bad faith especially when the following circumstances apply: (i) the complainant’s mark is distinctive and enjoys reputation; (ii) the respondent fails to submit a response or to provide any evidence of actual or contemplated good faith use; (iii) the respondent is concealing his identity or providing false contact details; (iv) there is no plausible good faith use that the respondent could make of the domain name under challenge.
In the instant case, as mentioned above, the Complainant’s trademark enjoys reputation, the Respondent failed to submit a Response to the Complaint and to demonstrate its good faith use of the disputed domain name, and concealed his identity behind a privacy service, also providing incorrect contact details at the time of the registration of the disputed domain name. In this respect, the Panel has ascertained that at least the Respondent’s address listed in the WhoIS of the disputed domain name is inaccurate. Furthermore, the disputed domain name reproduces the Complainant’s trademark coupled with the prefix “pharm”, which refers to the field of activity of the Complainant. Therefore, through the registration and use of the disputed domain name, the Respondent is impersonating the Complainant and is misleading the Internet users as to the origin of the disputed domain name in order to attract them to the Respondent’s website or other online location for some kind of illegitimate reason. Even if in the future the Respondent starts using the disputed domain name it is not plausible that such use would ever be in good faith.
For all the reasons set forth above, the Panel concludes that the disputed domain name was registered and is been used in bad faith. As such, also the third and last condition under the Policy should be considered as met.
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