{
    "case_number": "CAC-UDRP-104742",
    "time_of_filling": "2022-07-18 09:46:15",
    "domain_names": [
        " novartispharmacy.com "
    ],
    "case_administrator": "Denisa Bilík (CAC) (Case admin)",
    "complainant": [
        "Novartis AG"
    ],
    "complainant_representative": "BRANDIT GmbH",
    "respondent": [
        "Robert  Jackson"
    ],
    "respondent_representative": null,
    "factual_background": "FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:\r\n\r\nThe Novartis Group is one of the biggest global pharmaceutical and healthcare groups. It provides solutions to address the evolving needs of patients worldwide by developing and delivering innovative medical treatments and drugs. The Complainant, Novartis AG, maintains headquarters in Switzerland and was created in 1996 through a merger of two other companies Ciba-Geigyand Sandoz. Complainant is the holding company of the Novartis Group.\r\n\r\nThe Complainant’s products are manufactured and sold in many regions worldwide including the United States of America, a country where it has an active presence through its subsidiaries – such as NovartisPharmaceuticals Corporation – based in East Hanover, New Jersey and associated companies. Further, the Complainant owns a number of registrations, in several countries, for the trademark NOVARTIS listing a wide variety of goods and services in the fields of pharmaceuticals and healthcare.\r\n\r\nThe disputed domain name was registered on June 20, 2022 and resolves to an inactive index page.",
    "other_legal_proceedings": "The Panel is not aware of any other legal proceedings which are pending or decided and which relate to the disputed domain name.",
    "no_response_filed": "NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.",
    "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.\r\n\r\nHowever, a preliminary procedural question has been raised with respect to the adequacy of service upon the Respondent. The ADR Center of the Czech Arbitration Court, on August 16, 2022, issued a communication to the parties noting that, while “neither the written notice of the Complaint nor the advice of delivery thereof was returned to the Czech Arbitration Court”, “[t]he e-mail notice sent to [the Registrant email address disclosed by the concerned Registrar] and postmaster@novartispharmacy.com was returned back undelivered as the e-mail address had permanent fatal errors”. This communication goes on say that “[n]o further e-mail address could be found on the disputed site… [and] [t]he Respondent never accessed the online platform.”\r\n\r\nThis raises the question of whether the Respondent received notice of the present proceedings. Under Rule 4(c) of the Policy, the Provider is required to “send Written Notice of the complaint … to the Respondent, in the manner prescribed by Paragraph 2(a)….” The phrase “Written Notice” is defined in Rule 1 of the Policy as “hardcopy notification by the Provider to the Respondent of the commencement of an administrative proceeding under the Policy which shall inform the respondent that a complaint has been filed against it, and which shall state that the Provider has electronically transmitted the complaint including any annexes to the Respondent by the means specified herein. Written notice does not include a hardcopy of the complaint itself or of any annexes.” Under Rule 2(a) of the Policy, “it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent.” This Rule goes on to state that this responsibility may be discharged by the Provider “sending Written Notice of the complaint to all postal-mail and facsimile addresses … shown in the domain name's registration data in Registrar's Whois database” or by sending the complaint and any annexes by email to the email addresses listed in the Whois database, to “postmaster@<the contested domain name>”, and “any e- mail address shown or e-mail links on that web page” to which the disputed domain name resolves.\r\n\r\nThough not mentioned in the more current WIPO Overview 3.0, the WIPO Overview 2.0 notes on this issue that \"Panels have also noted that: (i) there are limits to what can reasonably be done by parties and providers to identify an 'underlying registrant' in the context of the UDRP, and if WhoIs information is not readily usable for communication purposes in such case the registrant must expect to bear any consequences”. This approach has been adopted in a number of decisions such as Singapore Pools (Private) Limited v. WhoisGuard, Inc. \/ Chicho Vancho, D2016-0290 (WIPO April 2, 2016) (“the contact details provided for the Respondent Chicho Vancho are false and … the address and telephone number provided do not exist. The Panel is satisfied that proper notice of this proceeding was provided to whomever that Respondent really is in accordance with the Rules.”).\r\n\r\nIn the present case, the CAC notes that “neither the written notice of the Complaint nor the advice of delivery thereof was returned to the Czech Arbitration Court”. This indicates a high likelihood that such notice was received at the postal address listed in the Whois record for the disputed domain name. Although notice to the email address stated in the Whois record was returned back undelivered, the Panel agrees with the position noted above that this does not create a fatal flaw to service upon the Respondent and, in any event, it is the Respondent’s sole responsibility to ensure that any contact information listed in the Whois record is accurate and up-to-date. If the address used by the CAC to send email notification of these proceedings failed due to an inaccurate or outdated address, the Respondent must expect to bear any consequences as the CAC has employed reasonably available means calculated to achieve actual notice to the Respondent. Under these circumstances, the Panel determines that this case may proceed despite the fact that emails to the Respondent were undeliverable.",
    "decision": "Accepted",
    "panelists": [
        "Steven M. Levy, Esq."
    ],
    "date_of_panel_decision": "2022-08-22 00:00:00",
    "informal_english_translation": "The Complainant has submitted evidence of the following registrations of the NOVARTIS trademark in relation to a range of products and services relating to a range of pharmaceutical and healthcare products and services:\r\n\r\n- Swiss trademark registration No. 2P-427370, registered on July 1, 1996, in classes 1, 2, 3, 4, 5, 7, 8, 9, 10, 14, 16, 17,20, 28, 29, 30, 31, 32, 40, and 42;\r\n- International trademark registration No. 663765, registered on July 1, 1996, in classes 1, 2, 3, 4, 5, 7, 8, 9, 10, 14, 16,17, 20, 22, 28, 29, 30, 31, 32, 40, and 42;\r\n- International trademark registration No. 1349878, registered on November 29, 2016, in classes 9, 10, 41, 42, 44, and 45;\r\n- United States trademark registration No. 2997235, registered on September 20, 2005, in class 5; and\r\n- United States trademark registration No. 4986124, registered on June 28, 2016, in class 5, 9, 10, 41, 42, and 44.",
    "decision_domains": {
        "NOVARTISPHARMACY.COM": "TRANSFERRED"
    },
    "panelist": null,
    "panellists_text": null
}