The Complainant is Novartis AG of Basel, Switzerland, represented by Dreyfus & associés of Paris, France.
The Respondent is Zhong Tian of Jiangsu, China.
The disputed domain name <exelon.me> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 6, 2015. On November 9, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 10, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On November 10, 2015, the Complainant filed an amended Complaint.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy") as adopted by doMEn, the registry operator of the .ME TLD on April 30, 2008, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") approved by doMEn on October 1, 2012, and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 17, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was December 7, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 9, 2015.
The Center appointed Syed Naqiz Shahabuddin as the sole panelist in this matter on December 17, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant is a producer of pharmaceutical products with more than 119,000 associates worldwide. One of the key pharmaceutical products manufactured by the Complainant is EXELON, a type of prescription medicine that is used to treat patients with mild, moderate and severe memory problems associated with Alzheimer's and Parkinson's disease.
The Complainant has registered the EXELON trademark from as early as 1993 in various countries. Apart from the registration of EXELON as a trademark, the Complainant has also registered EXELON as a domain name to promote its services, namely, <exelon.com>, which was registered on April 24, 1997 and <exelonpatch.com> which was registered on July 20, 2006.
The disputed domain name <exelon.me> was registered on August 30, 2015.
5.1 The Complainant asserts that EXELON is a well-known trademark. The Complainant contends further that the disputed domain name is confusingly similar to the Complainant's EXELON trademark for the following reasons:
(a) the disputed domain name comprises the Complainant's EXELON trademark as its sole and dominant feature.
(b) the inclusion of the country code Top-Level Domain ("ccTLD") ".me" is inconsequential when determining similarities between domain names and trademarks.
5.2 The Complainant further contends that the Respondent does not have any rights or legitimate interests to the disputed domain name because:
(a) the Complainant has not found any evidence to suggest that the Respondent has any rights or legitimate interests to the EXELON trademark nor has he been licensed or authorized to use the trademark by the Complainant.
(b) the Respondent is not, in any way, related to the Complainant's business, is not one of its agents, and does not carry out any activity or have any business with the Complainant. The Complainant has not licensed or authorised the Respondent in any way, including to register or to use the disputed domain name.
(c) the disputed domain name is being used by the Respondent solely for commercial gain as it resolves to a parking page with click-through links.
5.3 The Complainant further contends that the Respondent registered and used the disputed domain name in bad faith and relies on the following:
(a) the Complainant has not found any evidence to suggest that the Respondent has any rights or legitimate interests to the EXELON trademark including any license or authorization from the Complainant.
(b) the Respondent is using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to his website, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of his website.
(c) the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services but is instead seeking to free ride on and usurp the Complainant's reputation and goodwill in the EXELON trademark. The disputed domain name will cause confusion and divert Internet users away from the Complainant's official website.
The Respondent did not reply to the Complainant's contentions.
In order to succeed in its Complaint, the Complainant is required to establish the following elements set out under paragraph 4(a) of the Policy:
(a) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(b) that the Respondent has no rights or legitimate interest in respect of the disputed domain name; and
(c) that the disputed domain name has been registered and is being used in bad faith.
The Panel is satisfied with the evidence adduced by the Complainant to establish its rights to the EXELON trademark. The EXELON trademark is registered by the Complainant in various jurisdictions and is used on a worldwide basis.
The inclusion of the ccTLD ".me" is inconsequential to determine similarities between domain names and trademarks. The disputed domain name comprises the Complainant's EXELON trademark in its entirety.
The Panel therefore finds that the disputed domain name is identical and confusingly similar to the Complainant's EXELON trademark for the purposes of the Policy.
The Complainant's assertions have not been rebutted by the Respondent to indicate whether he has any rights or legitimate interests to the disputed domain name. There was also no evidence put forward by the Respondent to indicate that the Respondent is licensed or authorised by the Complainant to use the EXELON trademark.
The Complainant asserts that the disputed domain name resolves to a parking page with click-through links. In light of the Respondent's failure to rebut the Complainant's assertions and the features of the Respondent's website, the Panel finds no reason to doubt that the disputed domain name was used solely for commercial gain.
In the circumstances, the Panel finds that the respondent has no rights or legitimate interests in the disputed domain name. The Panel is, therefore, satisfied that the second element of paragraph 4(a) of the Policy has been proven by the Complainant.
The Panel agrees with the contention by the Complainant that the Respondent had knowledge of the Complainant's rights to the EXELON trademark when he registered the disputed domain name.
The factors that were taken into account to arrive at this conclusion include:
(a) the date of registration of the disputed domain name, which was well after the Complainant started production and commercialization of EXELON branded prescription medicinal products.
(b) the items appearing as click-through links on the website at the disputed domain name, such as "Transdermal patch", "Excelon patch", "Alzheimer patch", relate to the Complainant's medicinal products identified by the EXELON trademark.
(c) the use of the EXELON trademark by the Complainant was well before the disputed domain name was registered by the Respondent.
The Panel cannot find any justification for the registration and use of the disputed domain name in such circumstances except to find that the Respondent is using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to the website, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of his website.
As such, the Panel finds that bad faith registration and use have been demonstrated under paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <exelon.me> be transferred to the Complainant.
Syed Naqiz Shahabuddin
Sole Panelist
Date: December 31, 2015