{
    "case_number": "CAC-ADREU-004819",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "All capitalized terms not defined herein are used by reference to the various regulations and rules identified in this decision.\r\n\r\nThis complaint arises out of the interpretation and application of Commission Regulation (EC) No 874\/2004 of 28 April 2004 (“Regulation”), European Parliament and Council Regulation (EC) No 733\/2002 of April 22, 2002 (“EU Regulation”) and the .eu Domain Name ADR Rules and the Terms and Conditions (the “Rules” and “Conditions”).\r\n\r\nThe current Registrant of the domain name ambiencr.eu, (hereafter “the Domain Name”), registered on April 7, 2006 is UK Domain Developers, LTD, (“the Respondent”). \r\nOn November 23, 2007 SANOFI-AVENTIS, (“the Complainant”), submitted a complaint, (the “Complaint”), to the ADR Center requesting the transfer to it of the Domain Name.\r\nOn December 5, 2007 the ADR Center confirmed the receipt of the Complaint and requested verification information from Eurid about the Respondent. Eurid answered in a non-standard communication dated December 5, 2007 providing the requested information and confirming that the Domain Name would remain locked during the pending ADR Proceeding.\r\nOn December 12, 2007 the Complainant, in a non-standard communication, provided the appropriate identification of the Respondent.\r\nOn December 13, 2007, the ADR verified the Complaint.\r\nThe ADR Center then notified the Respondent that an ADR Proceeding had been commenced against it pursuant to Regulations (EC) No. 733\/2002 and No. 874\/2004.\r\nRespondent failed to answer the notification of proceedings within the prescribed delay (See Article B 3(a) of the ADR Rules) and on February 14, 2008, the ADR Center notified the Respondent’s default.\r\nThe ADR Center notified the appointment of the ADR Panel and the projected decision date on February 25, 2008.",
    "other_legal_proceedings": "The Panel is not aware of other pending or decided legal proceedings which relate to the disputed domain name.",
    "discussion_and_findings": "1\/ It should be noted that the Respondent did not file any Response to the Complaint. This entitles the Panel to proceed to a decision based on the Complaint alone and to consider this failure to respond as grounds to accept the claims of the Complainant.  This is stated under Article B 10 (a) of the ADR Rules. Consequently, the Panel accepts the claims of the Complainant, provided however, that these claims are valid, coherent and, in respect to the transfer, that the Complainant fulfils the eligibility criteria for registering a .eu domain name as established by Article 4 (2) (b) of the EU Regulation. \r\n\r\n\r\n2\/ According to Article 22(11) of the Regulation, in the case of a procedure against a domain name holder, the domain name will be revoked if the registration is speculative or abusive as defined in Article 21 and it will be transferred to the Complainant if the complainant requests the transfer of domain name and satisfies the general eligibility criteria set out in Article 4(2)(b) of Regulation (EC) No 733\/2002.\r\nIn the present case the issue at hand is whether the registration is speculative or abusive within the meaning of Article 21 of the Regulation.\r\n\r\n\r\nAccording to Article 21(1) of the Regulation, a domain name shall be subject to revocation and\/or transfer, where that name is identical or confusingly similar to a name in respect to which a right is recognized or established by national and\/or Community law, such as the rights mentioned in Article 10(1) of the Regulation, and where it:\r\nhas been registered without rights or a legitimate interest in the name, or \r\nhas been registered or is being used in bad faith.\r\n\r\n\r\n3\/ First, the Panel must determine whether the Domain Name is identical or confusingly similar to Complainant’s product name in respect of which a right is recognized or established by the national law of a Member State and\/or Community law.  \r\n\r\nThe Complainant has asserted that it owns several registered trademarks in the name AMBIEN and has provided evidence of this. The Complainant is furthermore owner of numerous domain names containing the word “AMBIEN”.  \r\n\r\nThe Complainant owns the International Registration for the trademark AMBIEN and several National Trademarks.\r\n\r\nHowever, contrary to what is affirmed in WIPO decision D2005-0660, Complainant did not own registered trademark in the name “ambiencr” at the time of registration of the domain name.  The trademark “ambiencr” was filed prior to the registration of the domain name.  It was not registered then.  The Complainant does not argue that “ambiencr” is well-known or as then well-known. \r\n\r\nComplainant is thus the holder of a right related to the expression “ambien” recognised by national and\/or Community law, such as the rights mentioned in Article 10(1). There is no indication that Respondent is the holder of such a right or that it is an authorized licensee of such rights.\r\n\r\n\r\n\r\nHowever, the Domain Name is not identical with Complainant’s protected rights; but is it confusingly similar to these?\r\n\r\nThe trademarks owned by Complainant in the expression “ambien” and the Domain Name differ in the additional element “cr” and the extension “.eu”.\r\n\r\nIn respect to the extension .eu added to the protected rights, it is widely accepted that the top level domain .eu is not considered under Article 10 of the Regulation as internet users see it as having only the function of an address and, hence being merely descriptive as affirmed in ADR.eu cases No. 00387 – gnc.eu and No. 02035 – warema.eu.\r\n\r\nFor the Complainant, the adjunction “cr” is the abbreviation of the expression “controlled release” which describes the specificity of the medicine. \r\n\r\nWhen searching for “ambiencr” on the internet, it is clear that the relationship is overwhelmingly strong between the trademark owned by Complainant and the expression “ambiencr”.  \r\n\r\nFurther, it is clear from searches conducted on the internet that the derivative brand “ambien cr” developed and marketed by Complainant from the registered trademark “ambien” increases the confusing aspect of the similarity.\r\n\r\nSuch searches also show that “ambiencr” is many times more confusingly similar to “ambien” than it is to the noun “ambience” or the adjective “ambient”.\r\n\r\nHence, it is likely that the public may type the Domain Name thinking that it would direct them to the website of Complainant. \r\n\r\nAs a result, the Panel concludes that “ambiencr” is confusingly similar to “ambien” and to the derivative brand “ambien cr” as developed and marketed by Complainant.\r\n\r\nAs a result the Panel considers that the Domain Name is identical or confusingly similar to Complainant’s name as protected by intellectual property rights.\r\n\r\n\r\n\r\n4\/ Does the Respondent have a right or a legitimate interest in the Domain Name?\r\n\r\nFirst it should be noted that failure for the Panel to conclude that Respondent has a right or a legitimate interest in the Domain Name would in itself be sufficient to order the cancellation or transfer of the Domain Name since Article 21 (1) prescribes an alternative conditionality rather than a cumulative one.\r\n\r\nSecond, one should not confuse having a legitimate interest in a Domain Name and registering or using it in bad faith.  These are often confused and arguments used for one indifferently used for the other.  \r\nArticle 21 (2) of the Regulation states that:\r\n“A legitimate interest within the meaning of point (a) of paragraph 1 may be demonstrated where:\r\n(a)\tPrior to any notice of an alternative dispute resolution (ADR) procedure, the holder of a domain name has used the domain name or a name corresponding to the domain name in connection with the offering of goods or services or has made demonstrable preparation to do so;\r\n(b)\tThe holder of a domain name, being an undertaking, organisation or natural person, has been commonly known by the domain name, even in the absence of a right recognised or established by national and\/or Community law;\r\n(c)\tThe holder of a domain name is 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 recognised or established by national and\/or Community law.”\r\n\r\n\r\nArticle 21 (2) of the Regulation implies a demonstration by Respondent rather than by Complainant.  In the present case Respondent’s failure to respond to the Complaint should mean a failure to demonstrate the existence of a right or a legitimate interest in the Domain Name. \r\n\r\nHowever, Article (B)(1)(b)(10)(i)(B) of the Rules states that Complainant must describe “why the domain name has been registered by its holder without rights or legitimate interests in respect of the domain name that is the subject of the Complaint”.  The Complaint outlined the Complainant’s arguments for the lack of a right or a legitimate interest in the Domain Name.  \r\n\r\n\r\nDoes Respondent have a right in the Domain Name?\r\n\r\nComplainant argues that Respondent has no right in the Domain Name and declares that it has not licensed or assigned its rights to Complainant.  \r\n\r\nRespondent is thus not affiliated with Complainant and it seems has never sought or obtained the consent of Complainant to register the Domain Name.  Respondent is not a licensee or otherwise permitted use of Complainant’s trademark.\r\n\r\nNo evidence has been provided to this Panel in respect to any other rights that Respondent may have in the Domain Name.\r\n\r\nFinally, this Panel concludes that Respondent has no right in the Domain Name.\r\n\r\n\r\n\r\nDoes Respondent have a legitimate interest in the Domain Name?\r\n\r\nIn respect to the issue of a legitimate interest, this Panel cannot disregard the existence of the Website that is linked to the Domain Name.  The Panel will consider this in relation to Complainant’s arguments as the Website is part of Complainant’s argument.\r\n\r\nNothing precludes the Panel from considering that a domain name that is used as a web directory is evidence of a legitimate interest. However, a legitimate interest is generally defined as either (i) a use or planned use of a domain name in connection with an offering of goods and services (ii) being commonly known by the domain name or (iii) using the name through a legitimate non-commercial or fair use, without tarnishing, misleading or diverting consumers.\r\n\r\n\r\nIs Respondent using or planning to use the Domain Name in connection with an offering of goods and services?\r\n\r\nRespondent has not responded to the Complaint.  This Panel must thus rely on the evidence presented to it and on its own research.  The Website appears to be the main evidence of any use made of the domain name.  The Website does not in itself appear to be providing goods or services.  It contains no indication of general terms and conditions or terms of service that usually come with such provision and no specific goods or services are identified.  Further, there is no indication as to the relationship between the owners of the Website and the owner of the Domain Name.  At no point does the Website clearly identify who runs it.  \r\n\r\nComplainant argues that Respondent is not using the Domain Name is connection with a bona fide offering of goods and services and that the Website is a directory that redirects to links that promote Complainant’s competitors’ products and that as such Respondent is either cornering the Domain Name or generating traffic through the confusion in the public’s mind that is created by the similarity between the Domain Name and Complainant’s rights.\r\n\r\nBased on the little evidence that it has, the Panel can only conclude that the Respondent of the Domain Name has not used the Domain Name or a name corresponding to the Domain Name in connection with the offering of goods and services and has made no demonstrable preparation to do so.  \r\n\r\n\r\n\r\nIs Respondent commonly known by the Domain Name?\r\n\r\nThere is no indication from the facts that Respondent is commonly known by the Domain Name.  Respondent’s name has little to do with the expression “ambiencr”.  It does not appear to be a brand or a business or trading name of Respondent.  Further, the Website does not mention the Respondent as if the Respondent did not wish to be known by the Domain Name. Even the “copyright” notice for the Website only mentions the Domain Name which as far as this Panel can tell is not in itself a legal entity.  \r\n\r\nComplainant states that it has granted Respondent no right or license in its trademarks.  \r\nBased on this evidence, the Panel concludes that the Respondent has not been commonly known by the Domain Name.\r\n\r\n\r\n\r\nIs Respondent 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 recognised or established by national and\/or Community law?\r\n\r\n\r\nComplainant points to the fact that it is possible from Respondent’s Website to obtain links to Complainant’s competitors’ products by typing “AMBIEN” into a search browser located on the Website.  This is true although it is also indicated that the search browser does not operate a site search but a web search.  In fact, many websites contain a “Google type” web browser imbedded in their framework.  This does not mean that they subscribe to the information obtained from the result.  However, the Website does not provide any disclaimer which it should.  And it appears that the Website generates incomes from redirections to such links as the links are in fact “sponsored results for ambient”.  It would not be fair use for the Respondent to benefit in any way from such links.  \r\n\r\nFurther, Respondent has received Complainant’s cease and desist letter and has failed to respond to it or make any changes to the Website.  It is difficult in that case for the Panel to consider that Respondent has no intent to mislead consumers or harm the reputation of Complainant’s name.  Respondent was given the opportunity to respond and justify its position.  Complainant stated in its letter that the name was in its view infringing on its rights and that the Website was causing it harm. Still Respondent failed to respond or to make appropriate changes to the Website.\r\n\r\nBased on the available evidence, this Panel is of the view that Respondent is not making a legitimate, non-commercial or fair use of the Domain Name.\r\n\r\nAs a result the Panel finds that the Respondent has not met the requirement set under Article 21(1)(a) and therefore there is no obligation under Article 21(1) to consider the issue of bad faith. \r\nFinally, the Complainant has demonstrated fulfilling the eligibility criteria of Article 4 (2) (b) of Regulation and requests orders the transfer of the Domain Name to Complainant.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that\r\n\r\n\r\n\r\n\r\nthe domain name AMBIENCR be transferred to the Complainant",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2008-03-20 00:00:00",
    "informal_english_translation": "A domain name shall be subject to revocation and\/or transfer, (1) where that 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, such as the rights mentioned in Article 10(1) of the Regulation, (2) and where it has been registered without rights or a legitimate interest in the name or (3) has been registered or is being used in bad faith. \r\n \r\nAMBIENCR is confusingly similar to a protected trademark that belongs to Complainant.   \r\n \r\nRespondent has failed to answer the Complaint and based on the available evidence the Panel finds that Respondent registered the Domain Name without rights or a legitimate interest in the name.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}