1. The Complainant has, to the satisfaction of the Panel, shown that the disputed domain name is identical or confusingly similar to the Complainant`s trademarks (within the meaning of paragraph 4(a)(i) of the Policy). In particular, the Panel finds that the disputed domain name is identical to the Complainant's trademark "MICARDIS", as well as to the relative domain names registered by BOEHRINGER INGELHEIM PHARMA GMBH & CO.KG since 1999.
In this regard, it shall be reminded how several previous UDRP Panels have held that when a domain name entirely incorporates a complainant’s registered trademark, this fact might be sufficient to establish confusing similarity for purposes of the Policy (see e.g. RapidShare AG, Christian Schmid v. InvisibleRegistration.com, Domain Admin, WIPO Case No. D2010-1059; Swarovski Aktiengesellschaft v. mei xudong, WIPO Case No. D2013-0150).
2. The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the domain name (within the meaning of paragraph 4(a)(ii)of the Policy).
The Panel finds that the Complainant successfully submitted prima facie evidence that the Respondent has made no use of, or demonstrable preparations to use, neither of the disputed domain name in connection with a bona fide offering of goods or services, nor is making a legitimate non-commercial or fair use of the disputed domain name, nor is commonly known under the disputed domain name. This prima facie evidence was not challenged by the Respondent, not even after the cease and desist letter received from the Complainant on November 14, 2016.
As a matter of fact, there are no arguments why the Respondent could have own rights or legitimate interests in the disputed domain name. "MICARDIS" is a fancy word and it does not seem to have any other meaning than the drug produced and commercialized by the Complainant. Therefore, the Panel accepts the contentions of the Complainant that the Respondent has no such rights or legitimate interests in <MICARDIS.TOP>.
3. The Complainant has, to the satisfaction of the Panel, shown the domain name to have been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii)of the Policy).
As stated above, the Panel finds that the Complainant successfully submitted prima facie evidence that the Respondent has made no use of, or demonstrable preparations to use, neither of the disputed domain name in connection with a bona fide offering of goods or services, nor is making a legitimate non-commercial or fair use of the disputed domain name, nor is commonly known under the disputed domain name. This prima facie evidence was not challenged by the Respondent, not even after the cease and desist letter received from the Complainant on November 14, 2016.
It is undeniable that the failure of the Respondent to reply to a cease and desist letter may be further evidence of bad faith (see e.g. Coutts & Co. v. Sande Skalnik, Patrick Harding, WIPO Case No. D2015-1590; Citrix Systems, Inc. v. Domains by Proxy, LLC / Sirishareddy Idamakanti - Sirisha Idamaknti, WIPO Case No. D2015-0017; E. & J. Gallo Winery v. Oak Investment Group, WIPO Case No. D2000-1213; Encyclopaedia Britannica, Inc. v. John Zuccarini and The Cupcake Patrol a/ka Country Walk a/k/a Cupcake Party, WIPO Case No. D2000-0330) and, according to the Panel, the above actually applies in this case.
In the absence of a Response and given the reputation of the Complainant and its trademarks supported by the submitted evidence, the Panel infers that the Respondent had the Complainant's trademarks "MICARDIS" in mind when registering <MICARDIS.TOP>. Consequently, the Panel believes that the same was registered and is being (passively) used in bad faith, in order to prevent the Complainant from reflecting the mark in the disputed domain name.
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