Abbott Laboratories v. Elena Blinova / Galina Ehlmoxsen
Claim Number: FA1512001651684
Complainant is Abbott Laboratories (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Elena Blinova / Galina Ehlmoxsen (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <abbott-investment.com> ('the Domain Name'), registered with Tucows Domains Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne of Palmer Biggs Legal as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 9, 2015; the Forum received payment on December 9, 2015.
On December 10, 2015, Tucows Domains Inc. confirmed by e-mail to the Forum that the <abbott-investment.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows
Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 December 11, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 31, 2015 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@abbott-investment.com. Also on December 11, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On January 6, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
Complainant's contentions can be summarised as follows:
The Complainant is a global healthcare company, founded in 1886 offering nutritional, diagnostic and medical products.
The Complainant's registered trade mark ABBOTT is registered in the USA and throughout the world including in the Ukraine where the Respondent resides. It obtained the abbott.com domain name over 15 years ago and actively uses it for its global marketing campaign.
The Domain Name was registered in 2015 long after the ABBOTT mark was in use.
The Domain Name is confusingly similar to the ABBOTT mark adding only the generic or descriptive term 'investment' and the gTLD .com. These elements are insufficient to negate the confusing similarity between the Domain Name and the Complainant's mark.
Respondent has no rights or legitimate interests in the Domain Name. It is not commonly known by Abbott and is not affiliated with the Complainant in any way.
Respondent was using the Domain Name in connection with a Russian language site that referred to the Complainant's corporate headquarters and utilized many logos of Complainant as well as a corporate video all with the intent to induce parties to become investors in the Complainant when in fact the investors were duped into sending their money to the Respondent. Complainant was able to have the website taken down on the grounds of fraud. Respondent has not used the Domain Name in connection with a bona fide offering of goods and services or for a legitimate non commercial or fair use. Respondent has no rights or legitimate interests in the Domain Name.
Respondent used a privacy service to register the Domain Name.
Respondent has attempted to commit fraud and such actions are disrupting to the Complainant’s business under Policy 4(b)(iii).
The use of the Domain Name in an attempt to obtain money from potential investors of Complainant clearly causes confusion for Respondent's financial benefit, which is also evidence of bad faith under Policy 4(b)(iv).
Respondent's use of the Domain Name to impersonate Complainant establishes that Respondent had actual knowledge of Complainant's rights in the ABBOTT mark and intended to create an association with Complainant and its products and services.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant's registered trade mark ABBOTT is registered in the USA and throughout the world including in the Ukraine where the Respondent resides for its services related to healthcare.
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."
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:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
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(f), 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 the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the 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.”).
Apart from the .com suffix which is not taken into account for the purposes of the Policy, the Domain Name consists of the Complainant’s ABBOTT registered trade mark, a hyphen and the generic word “investment”. The addition of the word “investment” and a hyphen does not serve to distinguish the Domain Name from the Complainant’s mark. See Broadcom Corp v Domain Depot FA 96854 (Nat. Arb. Forum Apr 23 2001) (finding the broadcomonline.com domain name is confusingly similar to the complainant's BROADCOM mark); see also Reese v Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007)(finding that the addition of a hyphen to the registered mark is an insubstantial change as the mark and the domain name would be pronounced in terms of the distinctive part of the domain name in an identical fashion) see also Jerry Damson Inc. v Tex Intl Prop. Assocs., FA 916991 (Nat.Arb.Forum Apr 10, 2007) ("The mere addition of a generic top-level domain ("gTLD") ".com" does not serve to adequately distinguish the Domain Name from the mark.") The Panelist finds that the Domain Name is confusingly similar to the Complainant’s registered trade mark ABBOTT for the reasons given above and as such the Complainant satisfies paragraph 4(a)(i) of the Policy.
The Panelist has had an opportunity to review the Respondent's web site and is of the opinion that it gives the impression that it is an official site authorised by the Complainant. It was not clear to the panelist upon a quick review of the site that it was not a site authorised by the Complainant mainly due to use of the ABBOTT logo. As such the web site must be considered to be misleading and the Respondent passing itself off as connected with or authorised by the Complainant. Passing off is evidence that the Respondent lacks rights or legitimate interests in the Domain Name. See Am. Int'l Group Inc. v Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent's attempts to pass itself off as the Complainant online was evidence that the Respondent has no rights or legitimate interests in the disputed domain name); see also Dream Horse Classifieds v Mosely FA 381256 (Nat. Arb. Forum Feb, 8 2005) (finding that the respondent's attempts to pass itself off as the complainant was evidence that the respondent lacked rights and legitimate interests.) As such the panelist finds that the Respondent lacks any rights or legitimate interests in the Domain Name.
Having found that the Respondent's web site is confusing and misleading customers into believing it is associated with the Complainant the panelist believes that the Respondent is attempting to pass itself off as authorised by the Complainant and has intentionally attempted to attract for commercial gain internet users to its web site by creating a likelihood of confusion by using the Complainant's marks and logo as to the source or endorsement of its web site under paragraph 4(b)(iv) of the Policy and also causing disruption to the Complainant under paragraph 4(iii) of the Policy. 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). Also Asbury Auto, Group, Inc v Tex, Int'l Prop. Assocs., FA 958542 (Nat. Arb. Forum May 29, 2007) (finding that the respondent's use of the domain name to advertise car dealerships that competed with the Complainant’s business would likely lead to confusion among Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith registration and use pursuant to Policy 4(b)(iv). As such, the panelist finds that the Domain Name has been registered and used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <abbott-investment.com> domain name be TRANSFERRED from Respondent to Complainant.
<<Dawn Osborne>>, Panelist
Dated: <<January 12, 2016>>
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