{ "case_number": "CAC-ADREU-004733", "time_of_filling": null, "domain_names": [], "case_administrator": null, "complainant": [], "complainant_representative": null, "respondent": [], "respondent_representative": null, "factual_background": "The Complainant filed a complaint regarding the domain name (the \"domain name\") on 2007-10-30. The domain name was registered by the Respondent on 2007-07-21, as confirmed by the Eurid verification.\r\n\r\nThe Complainant and its affiliates operate in the pharmaceutical industry in more than 100 countries. It is the owner of the mark TAMIFLU for Pharmaceutical antiviral products and for which it owns trademark registrations in many countries, including Greece (filing date 1999-05-25) and other EU countries. \r\n\r\nThe Respondent registered the domain name which currently hosts a website of the domain name broker SEDO (www.sedo.com). The website displays links to products in the pharmaceutical sector.", "other_legal_proceedings": "The Panel is not aware of any other pending or decided legal proceedings relating to the disputed domain name.", "discussion_and_findings": "According to Article 22(11) of Regulation 874\/2004, the Panel must determine whether the registration of the disputed domain name is speculative or abusive as defined in Article 21 of that Regulation. \r\n\r\nA registration of a domain name is speculative or abusive if the domain name \"is identical or confusingly similar to a name in respect of which a right is recognised or established by national or Community law\" and where it (a) has been registered by its holder without rights or legitimate interest; or (b) has been registered or is being used in bad faith. \r\n\r\nThe Panel is of the view that, if the .eu suffix is discounted, the disputed domain name is identical to the Complainant’s “TAMIFLU” mark, protected since 1999 in several EU countries, including Greece, the country where the Respondent is located. Accordingly, the Panel finds that the first requirement of the definition of speculative or abusive registration is satisfied. \r\n\r\nRegarding the question of whether the Respondent has a legitimate interest in the domain name, Article 21(2) of Regulation 874\/2004 states that “a legitimate interest may be demonstrated where, prior to any notice of an … ADR procedure, (a) the holder of a domain name has used the domain name … in connection with the offering of goods or services or has made demonstrable preparations to do so; (b) [it] has been commonly known by the domain name …; (c) [it] is making a legitimate and non-commercial or fair use of the domain name….”. These circumstances are not exhaustive.\r\n\r\nThe Complainant has established prima facie that the Respondent does not meet any of the above requirements. Further, in its Response, the Respondent does not put forward any legitimate interest that it may have to the domain name. \r\n\r\nIn fact, the Response seems to indicate that the Respondent does not have any right or legitimate interest. According to the Response, the Respondent registered the domain name simply because it was available. Further, the Respondent would accept losing the domain name if the Complainant showed \"previously legitimate EU rights\". As mentioned above, the Complainant has clearly established rights to the mark TAMIFLU predating the Respondent's registration of the challenged domain name.\r\n\r\nTherefore, the Panel finds that the Respondent has no right or legitimate interest in the disputed domain name.\r\n\r\nFor the above reasons, the Panel finds that the registration of the domain name is speculative or abusive as defined in Article 21 of Regulation 874\/2004.\r\n\r\nSince the Respondent has no right or legitimate interest in the disputed domain name, it is unnecessary to consider whether the domain name was registered or is being used in bad faith. However, the evidence shows a strong indication that the domain name was registered and is being used in bad faith as set out in Regulation 874\/2004 article 21(3)(a) and (d). The Panel is of the opinion that it is highly unlikely that the Respondent was not aware of the name TAMIFLU. Besides the existence of trademark rights of the Complainant in Respondent's home country (Greece), Complainant's product has been widely advertised in the media.\r\n\r\n\r\nRemedy\r\n\r\nArticle 22(11) of Regulation No. 874\/2004: \"In the case of a procedure against a domain name holder, the ADR panel shall decide that the domain name shall be revoked, if it finds that the registration is speculative or abusive as defined in Article 21. The domain name shall be transferred to the complainant if the complainant applies for this domain name and satisfies the general eligibility criteria set out in Article 4(2)(b) of Regulation (EC) No 733\/2002.\"\r\n\r\nParagraph B.1(b)(12) of the ADR Rules: \"If the Complainant requests transfer of the domain name, [it shall] provide evidence that the Complainant satisfies the general eligibility criteria for registration set out in Paragraph 4(2)(b) of Regulation (EC) No 733\/2002;\"\r\n\r\nParagraph B.11(b) of the ADR Rules: “The remedies available pursuant to an ADR Proceeding where the Respondent is the Domain Name Holder in respect of which domain name the Complaint was initiated shall be limited to the revocation of the disputed domain name(s) or, if the Complainant satisfies the general eligibility criteria for registration set out in Paragraph 4(2)(b) of Regulation (EC) No 733\/2002, the transfer of the disputed domain name(s) to the Complainant.” \r\n\r\nParagraph 4(2)(b) of Regulation (EC) No 733\/2002 setting out the general eligibility criteria requires a .eu domain name registrant to meet at least one of the following: (i) undertaking having its registered office, central administration or principal place of business within the Community, or (ii) organisation established within the Community without prejudice to the application of national law, or (iii) natural person resident within the Community. \r\n\r\nIn its Complaint, the Complainant seeks the transfer of the domain name to \"a Complainant's subsidiary located in an EU based territory\" (the Complainant does not identify any such subsidiary). The Complainant is based in Switzerland. Hence its request to transfer the domain name to an entity than the Complainant itself. Admittedly, the Complainant is not eligible in accordance with Regulation (EC) No 733\/2002. \r\n\r\nThe provisions cited above indicate that when the Complainant requests the transfer of the domain name, it (and not a related company) must satisfy the general eligibility criteria for registration, which is not the case here. Even if the Complainant had specified a subsidiary within the EU, the Panel notes that none of the above provisions supports the transfer of the domain name to a legal entity other than the Complainant (see also ADR.eu cases 3465 ROTARY, 3924 XANGO). Therefore, the domain name cannot be transferred as requested by the Complainant.\r\n\r\nHowever, in view of the Panel's finding that the registration of the domain name by the Respondent is speculative or abusive, the Panel orders that the domain name be revoked.", "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 TAMIFLU be revoked", "panelists": [ null ], "date_of_panel_decision": "2007-12-26 00:00:00", "informal_english_translation": "The domain name was registered by the Respondent on 2007-07-21.\r\n\r\nThe Complainant and its affiliates operate in the pharmaceutical industry in more than 100 countries. It is the owner of the mark TAMIFLU for Pharmaceutical antiviral products and for which it owns trademark registrations in many countries, including Greece (filing date 1999-05-25) and other EU countries. \r\n\r\nThe Panel is of the view that, if the .eu suffix is discounted, the disputed domain name is identical to the Complainant’s “TAMIFLU” mark.\r\n\r\nThe Complainant established prima facie that the Respondent does not have any right or legitimate interest in the domain name. The Respondent did not put forward any legitimate interest that it may have to the domain name. Therefore, the Panel finds that the Respondent has no right or legitimate interest in the disputed domain name.\r\n\r\nFurther, the evidence presented shows a strong indication that the domain name was registered and is being used in bad faith.\r\n\r\nThe Complainant seeks the transfer of the domain name to \"a Complainant's subsidiary located in an EU based territory\". \r\n\r\nThe Panel notes that no provision supports the transfer of the domain name to a legal entity other than the Complainant. Therefore, the domain name cannot be transferred as requested by the Complainant.\r\n\r\nHowever, in view of the Panel's finding that the registration of the domain name by the Respondent is speculative or abusive, the Panel orders that the domain name be revoked.", "decision_domains": [], "panelist": null, "panellists_text": null }