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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Alpharma, Inc v NIC Billing [2008] DRS 6315 (30 October 2008) URL: http://www.bailii.org/uk/cases/DRS/2008/6315.html Cite as: [2008] DRS 6315 |
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Complainant: Alpharma, Inc
Address: Womble Carlyle Sandridge & Rice, PLLC , 150 Fayetteville Street, Suite 210, North Carolina, Raleigh, Wake County, 27601, US
Respondent: NIC Billing
Address: 15 Mayakoskova St, Kharkov, 43242, UA
The Complaint in this matter was validated on 24 September 2008 and sent by Nominet to the Respondent on the same date. No Response having been filed by the prescribed deadline date of 15 October 2008, the matter was referred to me for an expert decision on 21 October 2008.
The Domain Name was registered by the Respondent on 3 July 2007.
Complainant
The Complainant makes the following submissions:
5.1 The Complainant is a specialty pharmaceutical company providing health products for both animals and humans.
5.2 The Complainant is the proprietor of US registered trade marks ALPHARMA, numbers 2,296,295 and 2,296,268, both registered on 30 November 1999. The Complainant states that it owns similar marks throughout the world, although (with the exception of a pending application for a CTM) further details are not provided.
5.3 The Complainant trades under the names Alpharma and Alpharma Animal Health in more than 80 countries and actively uses the domain namesand in the course of such trade.
5.4 . The Domain Name is identical or nearly identical to the Complainant's marks ALPHARMA and ALPHARMA ANIMAL HEALTH.
5.5 The Respondent is using the Domain Name for the purpose of a website offering animal health products for sale. The Respondent has reproduced the Complainant's stylised logo on that website, represents that the Complainant is its parent company and references the Complainant's own websites for further information.
5.6 The Respondent has no connection nor affiliation with the Complainant and the Complainant has not consented to the Respondent's use of the Domain Name. Nor is the Respondent known by the names Alpharma or Alpharma Animal Health. The Respondent has offered to remove all references to the ALPHARMA mark from its website thereby underlining that it has no legitimate connection with it.
5.7 The Respondent registered the Domain Name for the purpose of attracting internet users to its website by creating a likelihood of confusion with the Complainant's own marks and website. Its intention is to divert internet users seeking the Complainant's website and information about its products and to trade off the Complainant's name and goodwill.
5.8 The Complainant seeks a transfer of the Domain Name.
Respondent
No Response has been filed in this matter.
Relevant Provisions of the Policy
Under paragraph 2 of the Policy:
"(a) A Respondent must submit to proceedings under the Dispute Resolution Service if a Complainant asserts to [Nominet], according to the Procedure, that:
(i) the Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
(ii) the Domain Name, in the hands of the Respondent, is an Abusive Registration.
(b) The Complainant is required to prove to the Expert that both elements are present on the balance of probabilities."
Under paragraph 1 of the Policy the term "Rights":
"includes, but is not limited to, rights enforceable under English law…"
Further under paragraph 1 of the Policy, the term "Abusive Registration" means a domain name which either:
"i. was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant's Rights; OR
ii. has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant's Rights."
Paragraph 3 of the Policy sets out a non-exhaustive list of factors that may be evidence that a domain name is an Abusive Registration. Paragraph 4 sets out a non-exhaustive list of factors that may be evidence that it is not. However, all these factors are merely indicative of, and subject to, the overriding test of an Abusive Registration as set out above.
Rights
I am satisfied on the evidence that the Complainant has registered trade mark rights in the mark ALPHARMA and unregistered trade mark rights in the mark ALPHARMA ANIMAL HEALTH. Such unregistered rights arise by virtue of the Complainant having traded under that name, including by means of its domain name
Abusive Registration
The Respondent has failed to file a Response in this matter and the Complainant's submissions as to Abusive Registration are therefore undisputed. In the circumstances, I accept the Complainant's evidence that the Respondent has used the Domain Name to link to a website where the Respondent has offered animal health products for sale while falsely representing that it was a subsidiary company of, and otherwise associated with, the Complainant. Such circumstances are plainly indicative of an Abusive Registration as contemplated by paragraph 3(a)(ii) of the Policy, namely, that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant. I therefore conclude for the purposes of the Policy that the Domain name was registered and/or has been used in a manner which took unfair advantage of, or has been unfairly detrimental to, the Complainant's Rights.
The Complainant has established on the balance of probabilities that it has Rights in respect of a name or mark which is similar to the Domain Name. It has also established that the Domain Name in the hands of the Respondent is an Abusive Registration. The Complaint therefore succeeds and I direct that the Domain Name be transferred to the Complainant.
Signed: Steven A. Maier Date: 30 October 2008