Horizon Pharma, Inc. v. JASON JUNE
Claim Number: FA1604001672138
Complainant is Horizon Pharma, Inc. (“Complainant”), represented by James J. Saul of Faegre Baker Daniels LLP, Illinois, USA. Respondent is JASON JUNE (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <horizonpharmaceuticalplc.com>, registered with eNom, 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 26, 2016; the Forum received payment on April 27, 2016.
On April 27, 2016, eNom, Inc. confirmed by e-mail to the Forum that the <horizonpharmaceuticalplc.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 April 28, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 2016 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@horizonpharmaceuticalplc.com. Also on April 28, 2016, 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 May 25, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 uses the HORIZON PHARMA mark in connection with pharmaceutical preparations and substances. Complainant has registered the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,967,638, registered May 24, 2011), which demonstrates rights in the mark. See Compl., at Attached Annex C. Respondent’s <horizonpharmaceuticalplc.com> domain name is confusingly similar to the HORIZON PHARMA mark because it incorporates the mark in its entirety, adding only “ceuticals,” which is a suffix making the “pharma” portion of Complainant’s mark into the generic term “pharmaceuticals,” the descriptive abbreviation “plc,” and the generic top-level domain (“gTLD”) “.com.”
Complainant argues that Respondent has no rights or legitimate interests in the <horizonpharmaceuticalplc.com> domain name. Respondent is not commonly known by the disputed domain name. Respondent is neither making a bona fide offering of goods or services nor a legitimate noncommercial or fair use through the <horizonpharmaceuticalplc.com> domain name. Rather, Respondent is engaging in inactive holding of the disputed domain name. Further, Respondent is using the disputed domain name to engage in a phishing scheme. Respondent uses the emails attached to the domain name to create job postings claimed to be from Complainant on recruiting websites. See Compl., at Attached Annex D.
Respondent’s use of the emails attached to the domain name to engage in a phishing scheme in order to fraudulently obtain personal information and money from job seekers constitutes bad faith registration and use of the <horizonpharmaceuticalplc.com> domain name. See Compl., at Attached Annexes E and G.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <horizonpharmaceuticalplc.com> domain name was registered on March 8, 2016.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting registered trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
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 (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.”).
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark rights. Complainant adequately pleads it rights in the form of an existing trademark registration with the USPTO. See Reg. No. 3,967,638, registered May 24, 2011, Compl., at Attached Annex C.
Respondent’s <horizonpharmaceuticalplc.com> domain name is confusingly similar to the HORIZON PHARMA mark because it incorporates the mark in its entirety, less the space, adding only “ceuticals,” which is a suffix making the “pharma” portion of Complainant’s mark into the generic term “pharmaceuticals,” the descriptive abbreviation “plc,” and the gTLD “.com.” Such minor alterations are not enough to distinguish the domain from the Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent is apparently not commonly known by the disputed domain name. The WHOIS information regarding the <horizonpharmaceuticalplc.com> domain name lists “Jason June” as registrant. Complainant has apparently not given Respondent permission to use its HORIZON PHARMA mark. In light of the available evidence, the Panel finds that there is no basis to find Respondent commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
Further, Respondent is apparently neither making a bona fide offering of goods or services nor a legitimate noncommercial or fair use through the <horizonpharmaceuticalplc.com> domain name. Rather, Complainant contends that Respondent is engaging in inactive holding of the disputed domain name. Complainant claims that the disputed domain name resolves to a blank page. Complainant does not, however, provide any evidence that Respondent is engaged in inactive holding. However, the Panel finds this claim to be reasonable under the circumstances and, given that the Respondent has failed to respond, accepts this and all reasonable assertions as true.
Therefore, the Panel finds that the Respondent has engaged in inactive holding and, as such, does not constitute a bona fide offering of goods or services nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Complainant further contends that Respondent is using the disputed domain name to engage in a phishing scheme. Complainant claims that Respondent uses the emails attached to the domain name to create job postings claimed to be from Complainant on recruiting websites. See Compl., at Attached Annex D. Complainant contends that Respondent uses the emails attached to the domain name to communicate with job seekers who respond to the postings, claiming to be a member of Complainant’s human resources department. See Compl., at Attached Annexes E and F. Complainant claims that Respondent then informs the job seekers during an online interview that they must purchase computer software from Respondent in connection with their new employment. See Compl., at Attached Annex G.
The Panel finds that using an email address attached to a disputed domain name to phish for personal information and to fraudulently collect money does not constitute a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Complainant has not made arguments under Policy ¶ 4(b). Such arguments are not mandatory under the Policy—so long as Complainant shows bad faith use and registration in some manner. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant contends that Respondent’s use of the emails attached to the domain name to engage in a phishing scheme in order to fraudulently obtain personal information and money from job seekers constitutes bad faith registration and use of the <horizonpharmaceuticalplc.com> domain name. See Compl., at Attached Annexes E and G. Panels have found email phishing schemes to indicate bad faith registration and use under Policy ¶ 4(a)(iii). See Emdeon Business Services, LLC v. HR Emdeon Careers, FA1507001629459 (FORUM August 14, 2015) (finding that the respondent had engaged in an email phishing scheme indicating bad faith under Policy ¶ 4(a)(iii), where respondent was coordinating the disputed domain name to send emails to Internet users and advising them that they had been selected for a job interview with the complainant and was persuading the users to disclose personal information in the process).
Given the totality of the circumstances, the Panel finds that the use of emails attached to a disputed domain name to send emails to internet users in an attempt to gain personal information and collect money constitutes bad faith registration and use under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <horizonpharmaceuticalplc.com> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: May 25, 2016
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