{ "case_number": "CAC-UDRP-101727", "time_of_filling": "2017-11-06 10:22:23", "domain_names": [ "nuohuachina.com", "nuohuachina.net" ], "case_administrator": "Aneta Jelenová (Case admin)", "complainant": [ "Novartis AG" ], "complainant_representative": "BrandIT GmbH", "respondent": [ "Chun Lian Luo \/ Guang Zhou Demily Biological Technology Co., Ltd" ], "respondent_representative": null, "factual_background": "The Complainant is a well-known Swiss pharmaceutical and healthcare company. It manufactures a wide range of well-known drugs and its products are available in more than 180 countries.\r\n\r\nIts well-known trademarks are for NOVARTIS which are registered throughout the world and are more particularly described in this decision as the NOVARTIS trademarks.\r\n\r\nIt will be seen that one of the Complainant's trademarks is a Chinese trademark in the Chinese characters 诺华 for the term Nuohua (in pinyin) or NOVARTIS when translated into English.\r\n\r\nThe NOVARTIS trademarks were registered before the disputed domain names were registered.\r\n\r\nThe Complainant has a strong presence in China where it also has a website at www.novartis.com.cn.\r\n\r\n The Respondent is also doing business in China using the disputed domain names.\r\n\r\nThe Complainant has also registered a large number of domain names incorporating the term Novartis for use in its business, such as under generic Top-Level domains and country codes reflecting its international operations , including in China, where the Complainant has the domain name which was registered on August 20, 1999. \r\n\r\nThe Respondent registered the disputed domain names on April 18, 2016.", "other_legal_proceedings": "None of which the Panel is aware.", "no_response_filed": "CONTENTIONS OF THE PARTIES\r\n\r\n A. Complainant \r\n\r\nThe Complainant made the following contentions.\r\n\r\ni) LANGUAGE OF PROCEEDINGS\r\n\t\r\nComplaint submitted that the language of the proceeding should be English based on the following grounds.\r\n\r\nThe disputed domain names contain the trademark NOVARTIS, which is owned by the Complainant, a global healthcare company based in Switzerland and whose company´s language is English. In fact, Complainant operates under the domain name www.novartis.com which content is displayed in English.\r\n\r\nThe Complainant submitted that the Respondent replied to its cease and desist letter in English and never mentioned that he did not understand the content of said letter. In fact, Respondent replied to the letter asking, among other things, for a price at which it could buy the domain names.\r\n\r\nIn addition, the website to which the disputed domain name resolves shows some English content, for instance “NUOHUA HEALTH” or “IMPROVE YOUR HEALTH AND IMPROVE YOUR QUALITY OF LIVE”, which means that Respondent is perfectly able to understand this language.\r\n\r\nThe Complainant also submitted that the Respondent has chosen to register the disputed domain names under the Top Level domain names “.com” & “net” which is a commercial TLD, and is applicable to a broader audience than merely China. A more suitable TLD if only addressing the Chinese market would be the .cn extension. The proceeding will likely be put through unnecessary trouble and delay if Chinese were made the language of the proceeding and there would be no discernible benefit to the parties or the proceeding, in the circumstances, that may be gained by maintaining the default language.\r\n\r\nIn WIPO decisions D2015-1508 and D2015-0614 the Panel decided to accept the Complaint to be filed in English despite the fact that the Registrar had informed the Center that the language of the Registration Agreement was Turkish. \r\n\r\nFinally, it was submitted that the translating of the Complaint would cause unnecessary delay in this matter and the Complainant would be unfairly disadvantaged by being forced to translate as the translation would raise high costs despite the evidence showing the Respondent understands the English language.\r\n\r\n\r\nii) SUBSTANTIVE ISSUES\r\n\r\nIDENTITY OR CONFUSING SIMILARITY OF THE DOMAIN NAMES AND WITH THE NOVARTIS TRADEMARKS:\r\n\r\nThe Complainant submits that the disputed domain names are confusingly similar to the NOVARTIS trademarks. The Complainant submits that this is so because:\r\n\r\n(a)\tthe Chinese characters for Nuohua, 诺华 which is pinyin, mean NOVARTIS in the English language. \r\n(b)\tThe Complainant’s trademark NUOHUA is incorporated in the domain name, which is in effect NOVARTIS, and added to it is the word China, where the Complainant does business.\r\n\r\nThe impression is therefore given by this means that the Respondent is affiliated with the Complainant and is doing business in China under the Complainant’s trademark.\r\n\r\nIn considering this issue, it is well established that both phonetic similarities and similarities in meaning should be taken into account. \r\n\r\nIn addition, the Top-Level Domains “.com” and “.net” should be disregarded in accordance with the usual principles.\r\n\r\nAs a consequence, the Complainant submits that the disputed domain names are confusingly similar to the NOVARTIS trademarks.\r\n\r\nTHE RESPONDENT HAS NO RIGHTS OR LEGITIMATE INTERESTS IN RESPECT OF THE DOMAIN NAMES AND \r\n\r\nThe Complainant submits that the Respondent has no rights or any legitimate interests in respect of the disputed domain names. That is so for the following reasons: \r\n\r\n(a) The Respondent is not commonly known by the domain names.\r\n\r\n(b) Had the Respondent performed reasonable searches before registering the disputed domain names, it would have discovered that the Complainant owned the NOVARTIS trademarks and had been using them in China.\r\n\r\n(c) The Respondent has not used the domain names for a bona fide offering of goods or services, but has used them for business, wrongly adopting the name NOVARTIS as part of their name and has even applied for a trademark in China for ZHONG NOVARTIS, which the Complainant has opposed.\r\n\r\n(d) The Complainant has sent a cease and desist letter to the Respondent , which replied in part by offering to sell the domain names to the Complainant.\r\n\r\n(e) The principles in the decision in Oki Data Americas Inc., v. ASD Inc. WIPO Case No.D2001-0903 cannot give the Respondent a right or legitimate interest in the domain names as the facts of the present case fall outside the Oki Data principles.\r\n\r\n(f) The Respondent’s use of the domain names creates an overall impression that it is the Complainant or related to the Complainant, although at the present one of the domain names is not active.\r\n\r\nConsequently, the Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain names.\r\n\r\nBAD FAITH REGISTRATION AND USE\r\n\r\nThe Complainant also submits that the Respondent has registered and is using the disputed domain names in bad faith.\r\n\r\n1. Bad faith registration\r\n\r\nThe Complainant submits that the Respondent registered the domain names in bad faith. The Complainant has previously demonstrated the strong reputation and the well-known character of the NOVARTIS trademarks. \r\nIn fact, the Respondent must have been aware of the existence of the Complainant and its well-known reputation when it registered the domain names.\r\n\r\n\r\n2. Bad faith use\r\n\r\nThe Respondent has used the domain names in bad faith as is seen from the following circumstances.\r\n\r\n(a) The Complainant's trademark, reflected in the domain names was very well-known.\r\n\r\n(b) The Complainant has sent a cease and desist letter to the Respondent, which replied in part by offering to sell the domain names to the Complainant.\r\n\r\n(c) The Respondent’s website uses the NOVARTIS trademarks and brand as a result of which internet users seeking the Complainant have ended up at the Respondent’s site.\r\n\r\n(d) With respect to the website to which the domain name resolves, Respondent registered and used the domain name to capitalize or otherwise take advantage of the Complainant’s marks through the creation of initial interest confusion.\r\n\r\n(e) The Respondent has also tried to create confusion with the Complainant’s marks in clear breach of the Policy.\r\n\r\n(f) The Respondent nowhere disclaims the non-existing relationship between itself and the Complainant.\r\n\r\n(g) With respect to the website to which the domain name resolves, this is not an active website, but the Respondent has engaged in passive use of the domain name and, if used, it may create confusion. The Complainant also relies in the case of this domain name of the fact that the NOVARTIS trademarks were registered before the registration of the domain names.\r\n\r\nThe Complainant’s case is supported by documentary evidence attached to the Complaint.\r\n\r\nAs a consequence, the Complainant submits that the domain names were registered and used in bad faith by the Respondent.\r\n\r\nB. Respondent \r\n The Respondent did not reply to the Complainant’s contentions and is in default. \r\n\r\nThe Panel notes the observations in the recent decision in similar circumstances in the CAC Case No 100053, Enterprise Rent-a-Car Company v. Blupea c\/o Janepanas, Sirinarin and will therefore decide this proceeding on the basis of the Complainant’s submissions, drawing such inferences from the Respondent’s default that are considered appropriate according to paragraph 14(b) of the Rules. It is also noted in that decision that it was said in Enterprise Rent-A-Car Company v. Marco Costa, NAF case No. 908572, that “the Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory”. The Panel will therefore proceed along those lines.", "rights": "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).", "no_rights_or_legitimate_interests": "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).", "bad_faith": "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).", "procedural_factors": "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.", "decision": "Accepted", "panelists": [ "The Hon. Neil Brown, QC" ], "date_of_panel_decision": "2017-12-11 00:00:00", "informal_english_translation": "The Complainant is the registered owner of the following trademarks.\r\n\r\n(a) International Registration No.IR666218, for NOVARTIS, Registered on October 31, 1996 in Classes 41 and 42\r\n\r\n(b) International Registration No.IR663765, for NOVARTIS, Registered on July 1, 1996 in Classes 01, 02, 03, 04, 05, 07, 08, 09, 10, 14, 16, 20, 22, 28, 29, 30, 31, 32, 40 and 42\r\n\r\n(c) International Registration No.IR 1155214, for NOVARTIS, Registered on July 1,1996 in Classes 41 and 42\r\n\r\n(d) China trademark No. 1144779 for 诺华 (Nuohua) Registered on January 21,1998 in Class 05 \r\n\r\n(collectively \" the NOVARTIS trademarks\").", "decision_domains": { "NUOHUACHINA.COM": "TRANSFERRED", "NUOHUACHINA.NET": "TRANSFERRED" }, "panelist": null, "panellists_text": null }