{
    "case_number": "CAC-ADREU-004722",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The Complainant is the owner of several trademarks containing name “sustiva”.\r\n\r\nThe Respondent registered the domain name “sustiva.eu”. The Complainant requests that the domain name “sustiva.eu” be revoked in compliance with the meaning of Article 22(11) of the Commission Regulation (EC) 874\/2004.",
    "other_legal_proceedings": "The Panel is not aware of any legal proceedings which relate to the disputed domain name.",
    "discussion_and_findings": "According Article B11(d)(1) of the ADR Rules the Panel shall issue a decision granting the remedies requested under the Procedural Rules in the event that the Complainant proves in ADR proceeding where the Respondent is the holder of the domain name in respect of which the Complaint was initiated that\r\n\r\n(i) the domain name is identical or confusingly similar to a name in respect of which a right is recognized or established by national and\/or Community law and; either\r\n\r\n(ii) the domain name has been registered by the Respondent without rights or legitimate interest in the name; or\r\n\r\n(iii) the domain name has been registered or is being used in bad faith.\r\nArticle 21(1) of the Commission Regulation (EC) 874\/2004 of 28 April 2004 contains similar provision.\r\n\r\nI. Condition according to Article B11(d)(1)(i) of the ADR Rules \r\n\r\nThe Complainant submitted several excerpts from the trademark registers to prove the existence of the registered trademarks containing the name “sustiva”. The word element “sustiva” is the most distinctive part of the combined (word\/image) Community trademark (No. 969717). Besides that, the several Complainant’s trademarks are word trademarks with the only word “sustiva” (e.g. Austrian trademark No. 169299, BeNeLux trademark No. 607899, Czech trademark No. 209211, French trademark No. 97665304). It may be stated that “sustiva” is a dominant element of all these trademarks.\r\n\r\nWithout a doubt, the Complainant has proven the existence of its rights to the name “sustiva” as recognized by national law of a Member State (e.g. Austrian, BeNeLux, Czech, French, German and UK trademarks) and Community law (CTM 969717) consisting of a dominant element “sustiva”.\r\n\r\nThe Panel therefore came to the conclusion that the domain name “sustiva.eu” is identical with the prevailing element of the trademarks of the Complainant. Therefore, the Panel concludes that the condition set forth under Article B11(d)(1)(i) of the ADR Rules has been fulfilled. This conclusion could not be affected by the existence of the suffix “.eu” as a part of the “sustiva.eu” domain name, as this suffix is not relevant for the consideration of the identity and similarity of the domain name as stated in ADR 596 (RESTAURANTS), ADR 475 (HELSINKI) and ADR 387 (GNC) decisions.\r\n\r\nII. Condition according to Article B11(d)(1)(ii) of the ADR Rules\r\n\r\nThe Complainant contends that the Respondent has no rights or legitimate interest in the domain name. The Panel is of the opinion that it is very difficult for the Complainant to prove the non-existence of rights or legitimate interest of the Respondent. It is predominantly upon the Respondent to demonstrate the existence of his rights or legitimate interest in the domain name, but the Respondent has not responded to the Complaint at all. Therefore, the Panel had to review the existence of the Respondent’s right or legitimate interest on the basis of Complainant’s arguments and evidence only.\r\n\r\nThe legitimate interest is defined in more detail in Article 21(2) of the Commission Regulation (EC) 874\/2004 (and similarly in Article B11(e) of the ADR Rules) which contains a demonstrative enumeration of the circumstances which may prove the rights or legitimate interest.\r\n\r\nThe Complainant proved that the domain name is not used for the purposes of the website (there is no website or any other content available on the internet address consisting of the “sustiva.eu” domain name) nor any other service connected to the domain names. The Panel concludes that it has not been demonstrated that the Respondent has really used the domain name prior to the notice of an ADR procedure in connection with the real offer of goods or services. Furthermore, it has not been demonstrated that the Respondent has made demonstrable preparation to do so (Article B11(e)(1) of the ADR Rules).\r\n\r\nFurthermore, it has not been proven that the Respondent has been commonly known by the domain name (Article B11(e)(2) of the ADR Rules), nor was making a legitimate and non-commercial or fair use of the domain name without intent to mislead consumers or harm the reputation of a name on which a right is recognized or established (Article B11(e)(3) of the ADR Rules).\r\n\r\nNo circumstance demonstrating the existence of right or legitimate interest of the Respondent has been proven. Therefore, the Panel concludes, that the domain name “sustiva.eu” has been registered by the Respondent without rights or legitimate interest in the name.\r\n\r\nIII. Condition according to Article B11(d)(1)(iii) of the ADR Rules\r\n\r\nThe Complainant contends that the Respondent registered and uses the domain name in bad faith. The bad faith is defined in more detail in Article 21(3) of the Commission Regulation (EC) 874\/2004 (and similarly in Article B11(f) of the ADR Rules) which contains a demonstrative enumeration of the circumstances which may prove the registration or use of a domain name in bad faith.\r\n\r\nThe bad faith of the Respondent follows from:\r\n\r\n(a) high degree knowledge of the name “sustiva” as being a name of the pharmaceutical product, and from the fact that the Respondent registered at least one other domain name which he had no rights or legitimate interests in – see ADR 04108 (YOUNGLIFE) – the Panel is of the opinion that the domain name “sustiva.eu” has been registered in order to prevent the Complainant (or its affiliates) from reflecting this name in the corresponding domain name. Furthermore, the pattern of such conduct of the Respondent is demonstrated by the above mentioned ADR decision. Therefore, the condition set up in Article 21(3)(b)(i) of the Commission Regulation (EC) 874\/2004 is met;\r\n\r\n(b) the fact that word “sustiva” has most likely no meaning either in English and or in any other language, was created by the Complainant for its products and it would be very unlikely that the Respondent would have registered the domain name consisting of such imaginative name by a pure coincidence.\r\n\r\n(c) the fact that there is no website, and most likely any other service, accessible via domain name “sustiva.eu” and the “sustiva.eu” domain name is therefore in fact used to prevent the Complainant from reflecting “sustiva” word in the corresponding domain name.\r\nTherefore, the Panel concludes, that the domain name 4711.eu has been registered by the Respondent in bad faith.\r\n\r\n\r\nThe Complainant has satisfied the requirements of the Article 21(1) of Commission Regulation (EC) 874\/2004 and Article B11(d)(1) of the ADR Rules. Therefore, the Panel finds the Complaint as justified.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that\r\n\r\nthe domain name SUSTIVA be revoked.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2008-03-03 00:00:00",
    "informal_english_translation": "The Complainant is the owner of several national and Community trademarks with dominant (or only one) word element “sustiva”. The domain name “sustiva.eu” registered by the Respondent is therefore identical with the prevailing element of the trademarks of the Complainant. \r\n\r\nThe Respondent has not responded to the Complaint and has not provided the Panel with any evidence demonstrating the existence of Respondent’s rights or legitimate interest in the name “sustiva.eu”. Besides that, from the evidence provided by the Complainant, no circumstance demonstrating the existence of right or legitimate interest of the Respondent has been proven. Therefore, the Panel concluded, that the domain name “sustiva.eu” was registered by the Respondent without rights or legitimate interest in the name.\r\n\r\nFurthermore, the Panel is of the opinion that the domain name “sustiva.eu” was registered by the Respondent in bad faith as it has been highly probably registered in order to prevent the Complainant from reflecting this name in the corresponding domain name as the name “sustiva” is known as a name of the pharmaceutical products, is an imaginative name created by the Complainant for the purposes of his products, and is not used for the purposes for any website nor any other service accessible via domain names.\r\n\r\nFrom these reasons, registration without rights or legitimate interest and registration in bad faith, the Panel decided in favor of the Complainant and ordered that the domain name be revoked.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}