{
    "case_number": "CAC-UDRP-101169",
    "time_of_filling": "2016-02-25 14:46:34",
    "domain_names": [
        "BUY-NUVIGIL-ONLINE.NET"
    ],
    "case_administrator": "Lada Válková (Case admin)",
    "complainant": [
        "Cephalon, Inc."
    ],
    "complainant_representative": "Matkowsky Law PC",
    "respondent": [
        "Venture i. S.A"
    ],
    "respondent_representative": null,
    "factual_background": "The Complainant is an indirect, wholly-owned subsidiary of Teva Pharmaceutical Industries Ltd. The Complainant, together with its subsidiaries, was first established in 1901, with its global Headquarters in Israel. Operating in six countries Worldwide, Teva is ranked among the top pharmaceutical companies in the world, and the world's largest generic medicines producer. The Complainant's revenues in 2014 amounted to $20.3 billion.\r\n\r\nThe trademark NUVIGIL is used in connection with a pharmaceutical preparation aimed at improving wakefulness in adult patients with excessive sleepiness associated with narcolepsy, obstructive sleep apnea, or shift work disorder.\r\n\r\nThe NUVIGIL mark is well-known within its speciality area.\r\n\r\nThe Domain Name BUY-NUVIGIL-ONLINE.NET was registered on  July 1, 2015, i.e., well after the registration of the Complainant's NUVIGIL trademarks cited as a basis for this Complaint.",
    "other_legal_proceedings": "The Panel is not aware of any other pending or decided legal proceedings, which relate to the Domain Name.",
    "no_response_filed": "The Parties' contentions are the following.\r\n\r\nCOMPLAINANT:\r\n\r\n1. Confusing Similarity\r\n\r\nThe Complainant maintains that the Domain Name is confusingly similar to the Complainant's NUVIGIL trademark, because it fully incorporates its trademark with the addition of generic terms. Moreover, the gTLD \".com\" is not relevant to assessing the confusing similarity requirement under the Policy.\r\n\r\n2. Rights or Legitimate Interests\r\n\r\nAs far as the second element of the Policy is concerned, the Complainant states that providing prima facie evidence of the Respondent's lack of rights or legitimate interests in the Domain Name is sufficient to succeed on this point. 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.\r\n\r\nThe Complainant maintains that the pertinent Whois information identifying the registrant, does not resemble the Domain Name. On this record, the Respondent has not been commonly known by the Domain Name so as to have acquired rights or legitimate interests within the meaning of Para. 4(c)(ii)of the Policy.\r\n\r\nThe Respondent is luring consumers in search of the well-known NUVIGIL brand to a documented rogue online pharmacy that promotes \"generic\" and brand name pharmaceutical products, including products arguably competitive with the Complainant's NUVIGIL product. Such use does not demonstrate right or interest.\r\n\r\n3. Bad Faith\r\n\r\nAccording to the Complainant, there is bad faith in the registration of the Domain Name because the trademark registration predates the Domain Name registration and the Complainant's trademark is well-known in its field. Therefore the Respondent was aware of the Complainant's trademark when registering the Domain Name, as it also follows from the way the Domain Name is currently being used.\r\n\r\nAs far as use in bad faith is concerned, the Complainant states that the Respondent is attempting to attract for commercial gain, Internet users to its website or to the websites linked thereto, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of their websites and of the products promoted therein.\r\n\r\nRESPONDENT:\r\n\r\nThe Respondent has filed a one sentence Response, stating as follows: \"our client agrees to pass the ownership of the domain to the copyright holder\".",
    "rights": "In the instant case, the Panel has not deemed necessary to verify whether the 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), for the reasons explained below.",
    "no_rights_or_legitimate_interests": "In the instant case, the Panel has not deemed necessary to evaluate the Respondent's lack of rights or legitimate interests in respect of the Domain Name (within the meaning of paragraph 4(a)(ii)of the Policy), for the reasons explained below.",
    "bad_faith": "In the instant case, the Panel has not deemed necessary to assess the registration and use of the Domain Name in bad faith  (within the meaning of paragraph 4(a)(iii)of the Policy), for the reasons explained below.",
    "procedural_factors": "Before addressing the principal reasons for the decision, it is necessary to evaluate one procedural issue that the Complainant has raised.\r\n\r\nThe Complainant points out that the language of the Registration Agreement is Russian. The Registrar of the disputed domain name has confirmed.\r\n\r\nThe Complainant has requested to change the language of these proceedings to English because the Respondent appears to be fluent in English, while the Complainant would be jeopardised by having to conduct the procedure in Russian, which is a language that the Complainant does not know. \r\n\r\nThe main reasons to support the Complainant's request are the following. The Respondent is an anonymous and offshore hosting solution provider incorporated in Panama ad doing business worldwide. The Respondent offers anonymous solutions covering domain registrations. The Respondent's website is only in English and all press releases concerning their services are in English. Furthermore, the Domain Name itself includes English words and the website hosted on the Domain Name is also in English.\r\n\r\nThe Complainant is not familiar with Russian Language and having to conduct the proceedings in Russian would disadvantage the Complainant as it would have to incur added expense and inconvenience in having the Complaint translated into Russian.\r\n\r\nAccording to Para. 11(a) of the Rules, \"[u]nless 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, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding\".\r\n\r\nIn the instant case, it is clear that the Respondent is fluent in English, not only for the reasons mentioned  in the Complaint, but also because the Response is written in English.  Moreover, the Respondent did not object to the Complainant's request to change the language of the proceeding. On the other side, it is clear that the Complainant is not familiar with Russian.\r\n\r\nAs none of the parties would be affected by the change of the language of these proceedings from Russian to English, the Panel hereby determines to accept the Complainant's request to conduct these proceedings in English.",
    "decision": "Accepted",
    "panelists": [
        "Angelica Lodigiani"
    ],
    "date_of_panel_decision": "2016-03-19 00:00:00",
    "informal_english_translation": "For the purpose of these proceedings, the Complainant relies on its earlier NUVIGIL trademark in class 5, registered in the US (Reg. No. 3538564) and in the EU with the OHIM (reg. No. 4124831).",
    "decision_domains": {
        "BUY-NUVIGIL-ONLINE.NET": "TRANSFERRED"
    },
    "panelist": null,
    "panellists_text": null
}