Case number | CAC-UDRP-105790 |
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Time of filing | 2023-09-19 09:56:17 |
Domain names | boehringer-ngelheim.com |
Case administrator
Name | Olga Dvořáková (Case admin) |
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Complainant
Organization | Boehringer Ingelheim Pharma GmbH & Co.KG |
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Complainant representative
Organization | NAMESHIELD S.A.S. |
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Respondent
Name | Uka Henry |
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The Panel is not aware of any other legal proceedings which are pending or decided and which relate to the disputed domain name.
The Complainant bases its Complaint on the International trademark registrations “BOEHRINGER-INGELHEIM”, no. 221544, registered since 02.07.1959, for goods in classes 01, 02, 03, 04, 05, 06, 16, 17, 19, 29, 30, 32, designating several countries for protection and the international trademark “BOEHRINGER INGELHEIM”, no. 568844 registered since 22.03.1991, for goods in classes 01, 02, 03, 04, 05, 09, 10, 16, 30, 31, designating several countries for protection.
The Complainant is a family-owned pharmaceutical group of companies with roots going back to 1885, when it was founded by Albert Boehringer (1861-1939) in Ingelheim am Rhein. Ever since, Boehringer has become a global research-driven pharmaceutical enterprise and has today about roughly 53,000 employees. The three business areas of BOEHRINGER INGELHEIM are: human pharmaceuticals, animal health and biopharmaceuticals. In 2022, BOEHRINGER INGELHEIM achieved net sales of 24.1 billion euros.
The Complainant owns a portfolio of trademarks including the International trademark registrations “BOEHRINGER-INGELHEIM”, no. 221544, registered since 02.07.1959, for goods in classes 01, 02, 03, 04, 05, 06, 16, 17, 19, 29, 30, 32, designating several countries for protection and the international trademark “BOEHRINGER INGELHEIM”, no. 568844 registered since 22.03.1991, for goods in classes 01, 02, 03, 04, 05, 09, 10, 16, 30, 31, designating several countries for protection.
Furthermore, the Complainant is the owner of a numerous portfolio of domain names including the domain name <boehringer-ingelheim.com> registered since 01.09.1995.
The disputed domain name < boehringer-ngelheim.com > was registered on 12.09.2023 and at the time when the Complaint was filed, resolved to the website https://www.google.com. In addition, MX servers are configured in relation to the disputed domain name.
NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.
The disputed domain name <boehringer-ngelheim.com> is confusingly similar to the Complainant's earlier trademarks BOEHRINGER-INGELHEIM, that the Respondent lacks rights or legitimate interests in the disputed domain name for a number of reasons and that the disputed domain name was registered and is being used in bad faith.
The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).
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).
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 all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.
I. Confusing Similarity
The Panel agrees that the disputed domain name <boehringer-ngelheim.com> is confusingly similar to the Complainant's earlier trademarks BOEHRINGER-INGELHEIM. The misspelling of the trademark BOEHRINGER-INGELHEIM of the Complainant, namely the deletion of the letter “I” from the beginning of the word part “INGELHEIM”, is not sufficient to escape the finding that the disputed domain name is confusingly similar to the Complainant’s trademark and it does not change the overall impression of the designation as being connected to the trademark BOEHRINGER-INGELHEIM.
Moreover, the extension “.com” is not to be taken into consideration when examining the similarity between the Complainant’s trademark and the disputed domain name (WIPO Case No. D2005-0016, Accor v. Noldc Inc.). The mere adjunction of a gTLD such as “.com” is irrelevant as it is well established that the generic Top Level Domain is insufficient to avoid a finding of confusing similarity (WIPO Case No. 2013-0820, L’Oréal v Tina Smith, WIPO Case No. D2008-0820 Titoni AG v Runxin Wang and WIPO Case No. D2009-0877, Alstom v. Itete Peru S.A.).
Therefore, the Panel is satisfied that the first condition under the Policy is met.
II. Lack of Respondent's rights or legitimate interests
The 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 proof shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the disputed 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 UDRP.
Based on the available evidence, the Respondent does not appear to be known by the disputed domain name as such is not identified in the WHOIS database as the disputed domain name. The Respondent is not a licensee of, nor has any kind of relationship with, the Complainant. The Complainant has never authorised the Respondent to make use of its trademark, nor of a confusingly similar trademark in the disputed domain name.
The disputed domain name resolve to redirects to a parking page with commercial links. Such use does not amount to a bona fide offering of goods or services, or to a legitimate noncommercial or fair use of the disputed domain name, as other UDRP panels have found.
The Panel notes that the Respondent had an opportunity to comment on the Complaint’s allegations by filing a Response, which the Respondent failed to do.
Thus, the Panel is satisfied that the Complainant has at least established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. Accordingly, the Panel takes the view that also the second requirement under the Policy is met.
III. Bad Faith
The Complainant's trademark BOEHRINGER-INGELHEIM is a distinctive one which predate the registration date of the disputed domain name. The Respondent has chosen to register the disputed domain name containing a misspelling version of the Complainant’s BOEHRINGER-INGELHEIM trademark in order to create a confusion with such trademark. Therefore, the Panel concludes that at the time of registration of the disputed domain name, the Respondent was well aware of the Complainant’s trademark and has intentionally registered one in order to benefit from the distinctive character of the Complainant’s trademark.
In the present case, the following factors should be considered:
(i) the Complainant's trademark is a distinctive one;
(ii) the Respondent failed to submit any response and has not provided any evidence of actual or contemplated good faith use of the disputed domain name;
(iii) the Respondent registered the disputed domain name containing a misspelling version of a distinctive trademark;
(iv) the Respondent has no business relationship with the Complainant, nor was ever authorised to use a domain name similar to the Complainant's trademark;
(v) the disputed domain name redirects to the search engine “google.com”, while MX records appear to have been configured which suggests that it may be actively used for email purposes, most probably in order to attract Internet users for the Respondent’s commercial gain thanks to the Complainant’s trademark. Considering the above, in the Panel’s view, it is inconceivable that the Respondent will be able to make any good faith use of the disputed domain name as part of an e-mail address.
In light of the foregoing, the Panel concludes that the Respondent has registered and has been using the disputed domain name in bad faith. Thus, also the third and last condition under the Policy is satisfied.
- boehringer-ngelheim.com: Transferred
PANELLISTS
Name | Delia-Mihaela Belciu |
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