Ferring B.V. v. IsraMeds
Claim Number: FA1110001410664
Complainant is Ferring B.V. (“Complainant”), represented by Arne M. Olson, Illinois, USA. Respondent is IsraMeds (“Respondent”), Israel.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <buybravelle.com>, registered with GoDaddy.com, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 7, 2011; the National Arbitration Forum received payment on October 10, 2011.
On October 7, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <buybravelle.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 10, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 31, 2011 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@buybravelle.com. Also on October 10, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 7, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Complainant is a global manufacturer and distributor of pharmaceuticals.
Complainant owns registrations for the BRAVELLE trademark, on file with the United States Patent and Trademark Office (“USPTO”) (including Reg. No. 2,667,119, registered December 24, 2002).
Complainant uses the mark to market and promote one of its product offerings, a pharmaceutical drug, which is used to remedy infertility.
Respondent registered the disputed domain name May 15, 2011.
The disputed domain name redirects Internet users to Respondent’s website <isrameds.com>, which offers online pharmacy services in competition with Complainant’s own product offerings.
Respondent’s <buybravelle.com> domain name is confusingly similar to Complainant’s BRAVELLE mark.
Respondent is not commonly known by the disputed domain name.
Complainant has never authorized Respondent to use the BRAVELLE trademark in any way.
Respondent does not have any rights to or legitimate interests in the domain name <buybravelle.com>.
Respondent registered and uses the disputed <buybravelle.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has rights in the BRAVELLE trademark under Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that a complainant had established rights in the GOOGLE mark through its holding of trademark registrations); see also Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding a complainant’s registrations for its HONEYWELL mark sufficient to establish its rights in the mark under the Policy ¶ 4(a)(i)).
Respondent’s <buybravelle.com> domain name is confusingly similar to Complainant’s BRAVELLE trademark under Policy ¶ 4(a)(i). The domain name includes the entire mark while merely adding the generic term “buy” and the generic top-level domain “.com.” See Google Inc. v. Xtraplus Corp., D2001-0125 (WIPO Apr. 16, 2001) (finding that a respondent’s domain names were confusingly similar to a complainant’s GOOGLE mark where that respondent merely added common terms such as “buy” or “gear” to the mark in forming the domains); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002):
[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights to and legitimate interests in the disputed domain name. Under Policy ¶ 4(a)(i), Complainant is obliged to make out a prima facie showing in support of this contention, whereupon the burden shifts to Respondent to demonstrate that it has such rights or interests. See, for example, Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), finding that:
complainant must first make a prima facie case that respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to respondent to show it does have rights or legitimate interests.
Complainant has met its prima facie burden under this head of the Policy. Therefore, and because Respondent has failed to file a response to the Complaint filed in this proceeding, we are permitted to presume that it lacks rights to or legitimate interests in the disputed domain name. See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because a respondent failed to submit a response to a UDRP complaint:
Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.
Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent is not commonly known by the disputed domain name, and that Complainant has never authorized Respondent to use the BRAVELLE trademark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the disputed domain name only as “Isrameds,” which does not resemble the contested domain name. On this record, we conclude that Respondent is not commonly known by the disputed domain name so as to have demonstrated that it has rights to or legitimate interests in the domain within the meaning of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that a respondent was not commonly known by the <coppertown.com> domain name, and so had no rights to or legitimate interests in the domain under Policy ¶ 4(c)(ii), where there was no evidence in the record, including the pertinent WHOIS information, suggesting that that respondent was commonly known by the disputed domain name); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding that a respondent had no rights to or legitimate interests in a disputed domain name under Policy ¶ 4(c)(ii) where there was no evidence in the record indicating that that respondent was commonly known by the disputed domain name).
We next observe that Complainant contends, without objection from Respondent, that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name in that the domain redirects Internet users to Respondent’s own website where it sells the products of Complainant’s commercial competitors. Respondent’s use of the disputed domain name in this manner is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Florists’ Transworld Delivery v. Malek, FA 676433 (Nat. Arb. Forum June 6, 2006) (holding that a respondent’s use of the <ftdflowers4less.com> domain name to sell flowers in competition with the business of a complainant did not give rise to any legitimate interest in the domain name); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that a respondent was not using a domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because that respondent used the domain to take advantage of a complainant's mark by diverting Internet users to a competing commercial website).
The Panel thus finds that the requirements of Policy ¶ 4(a)(ii) have been met.
Respondent’s use of the disputed domain name as alleged in the Complaint disrupts Complainant’s business, and thus stands as evidence of bad faith registration and use of the domain under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005):
Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
See also Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006) (holding that a respondent’s registration and use of a domain name confusingly similar to a complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent that registered and used the domain name to disrupt that complainant’s business in bad faith under Policy ¶ 4(b)(iii)).
In addition, in the circumstances here presented, we may comfortably presume that Respondent gains commercially from the operation of the website resolving from the disputed domain name. This, taken together with the evidence referenced above, demonstrates bad faith registration and use of the domain under Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where a respondent registered a domain name confusingly similar to a complainant’s mark, and where that domain was used to host a commercial website that offered services similar to those offered by a complainant under its mark); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that a respondent engaged in bad faith registration and use of domain names that were identical or confusingly similar to a complainant’s mark by using them to redirect users to a website that offered services similar to those offered by that complainant).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <buybravelle.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: November 10, 2011
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