{ "case_number": "CAC-UDRP-101224", "time_of_filling": "2016-06-13 11:36:25", "domain_names": [ "nuvigil-reviews.com" ], "case_administrator": "Lada Válková (Case admin)", "complainant": [ "Cephalon, Inc." ], "complainant_representative": "Matkowsky Law PC", "respondent": [ "Victory Films Inc." ], "respondent_representative": null, "factual_background": "FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:\r\n\r\nGENERAL\r\n\r\nThe Complainant's case is that it is the owner of several trademarks for NUVIGIL, that it is the owner of the United States trademark No. 3538564 and also of the OHIM CTM trademark Reg. No. 004124831 that the disputed domain name , was registered on December 20, 2011 (i.e. several years after the Complainant's registration of its trademarks), and is registered in the name of the Respondent, that the domain name is confusingly similar to the NUVIGIL trademarks, that the Respondent has no rights or legitimate interests in the domain name and that the domain name was registered and used in bad faith. \r\n\r\nBACKGROUND\r\n\r\nThe Complainant is an indirect, wholly-owned subsidiary of Teva Pharmaceutical Industries Ltd. Formed in 1976, through its predecessors-in-interest, Teva Pharmaceutical Industries Ltd., together with its subsidiaries (collectively, “Teva”), was first established in 1901 with its global headquarters in Israel. Operating in sixty countries worldwide, Teva (NYSE and TASE: TEVA) (www.tevapharm.com) is ranked among the top pharmaceutical companies in the world, and the world’s largest generic medicines producer. Teva’s net revenues in 2014 amounted to $20.3 billion.\r\n\r\nIn specialty medicines, Teva has a world-leading position in innovative treatments for disorders of the central nervous system, including pain, as well as a strong portfolio of respiratory products. \r\n\r\nThe Complainant's Cephalon’s NUVIGIL® (armodafinil) Tablets [C-IV] are part of Teva’s CNS (Central Nervous System) line of specialty medicines. They contain armodafinil, a Schedule IV federally controlled substances in the United States. Subject to important safety information, NUVIGIL® is indicated to improve wakefulness in adult patients with excessive sleepiness associated with narcolepsy, obstructive sleep apnea (but not as treatment for the underlying obstruction), or shift work disorder. \r\n\r\nThe Complainant claims its NUVIGIL® mark is well known within its specialty area, and Complainant uses its mark in its own domain names (e.g., see http:\/\/nuvigil.com).\r\n\r\nCOMPLAINANT'S CONTENTIONS\r\n\r\nThe Complainant has submitted that Panels have found that registration of a mark with a trademark authority, regardless of the location of the parties, is sufficient evidence of having rights in a mark. E.g., Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal U.S. trademark registrations); Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (\"The Policy does not require that the mark be registered in the country in which the Respondent operates. It is sufficient that a complainant can demonstrate a mark in some jurisdiction.\"); Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a trademark authority); Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). \r\n\r\nAccording to the Complainant previous panel decisions have generally held that trademark registrations are valid and constitute prima facie evidence of ownership, validity and the exclusive right to their use. E.g., Microsoft Corporation v. J. Holiday Co. (WIPO case no. D2000-1493 February 20 2000); Poarch Band of Creek Indians dba PCI Gaming Authority v. Tech Admin, Virtual Point, NAF Claim No. FA1509001639763 (Nov. 13, 2015).\r\n\r\nMoreover, the Complainant contends that several series of CAC Panels have recognized the Complainant's rights in its PROVIGIL\/NUVIGIL marks. CAC Case Nos. 100832-100835 (transferring, among others, ); CAC Case No. 100892 (transferring \r\n, , , among others); CAC Case No. 100175 (transferring ); Case No. 100172 (transferring ); CAC Case No. 100169 (transferring ).\r\n\r\nIn the light of the above and for the disputed domain name incorporates the Complainant's trademarks, the domain name is alleged by the Complainant to be confusingly similar to the registered trademark in which the Complainant has rights. \r\n\r\nFurthermore, the Complainant submits that the Respondent has not been commonly known by the disputed domain name, and, further, the Complainant has not authorized, permitted or licensed Respondent to use its trademarks in any manner. Respondent has no connection or affiliation with the Complainant whatsoever. \r\n\r\nOn top of that according to the Complainant, the pertinent WHOIS information identifies the registrant, which does not resemble the domain name. On this record, Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the meaning of paragraph 4(c)(ii) of the Policy.\r\n\r\nThe Complainant's case is that the Respondent is luring consumers in search of the well-known NUVIGIL brand to a website that promotes allegedly competitive or highly related \"brain vitamins\" and \"brain supplements\" that have no affiliation with Complainant or its NUVIGIL brand, including specifically Excelerol from Accelerated Intelligence Inc., in California USA. The website specifically refers to Excelerol falsely as \"Nuvigil Brain Supplement\" with a link to the Excelerol website, unaffiliated with the Complainant. Luring consumers in search on the well-known NUVIGIL brand to a site promoting products purportedly competitive with Complainant's NUVIGIL product, such as Excelerol, does not demonstrate a legitimate right or interest. Labelling such products as \"Nuvigil Brain Supplement\" with a link to Excelerol.com constitutes false advertising as well.\r\n\r\nBAD-FAITH REGISTRATION AND USE\r\n\r\nThe Complainant's case is that its trademark registration predates the domain name registration and is well known in its field. The Respondent can be considered to have been aware of the Complainant's trademark when registering the domain name, as obviously also follows from the way the domain name is currently being used. \r\n\r\nIn light of the use of the disputed domain name the Complainant claims, the Respondent is attempting to attract, for commercial gain, Internet users to its web site or to the web sites linked thereto, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of their web sites and of the products promoted therein.", "other_legal_proceedings": "None of which the Panel is aware.", "no_response_filed": "NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.\r\n\r\nPARTIES' CONTENTIONS:\r\n\r\nCOMPLAINANT:\r\n\r\nRESPONDENT:", "rights": "The Complainant has, to the satisfaction of the Panel, shown 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).", "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 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 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": "2016-07-13 00:00:00", "informal_english_translation": "The Complainant has established that it has extensive trademark rights in the NUVIGIL mark.\r\n\r\nIn particular it on relies on its rights pursuant to trademark registrations in the United States of America and Europe, established by evidence submitted by the Complainant which the Panel accepts.\r\n\r\nThis evidence shows that the Complainant is registered as the owner of the United States trademark No. 3538564, registered on November 25, 2008, and the OHIM CTM trademark Reg. No. 004124831, registered on January 26, 2006. ", "decision_domains": { "NUVIGIL-REVIEWS.COM": "TRANSFERRED" }, "panelist": null, "panellists_text": null }