Abbvie, Inc. v. Ion Chitoroaga
Claim Number: FA1605001673810
Complainant is Abbvie, Inc. (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, United States. Respondent is Ion Chitoroaga (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <abbvle.com>, registered with Cronon AG.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 6, 2016; the Forum received payment on May 6, 2016.
On May 9, 2016, Cronon AG confirmed by e-mail to the Forum that the <abbvle.com> domain name is registered with Cronon AG and that Respondent is the current registrant of the name. Cronon AG has verified that Respondent is bound by the Cronon AG 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 May 10, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, in both English and German, setting a deadline of May 31, 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@abbvle.com. Also on May 10, 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 June 1, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a specialty-focused research-based biopharmaceutical company that employs approximately 28,000 persons worldwide in over 170 countries. Complainant has registered the ABBVIE mark in the United States in 2013, and in many other countries, including the United Kingdom.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s mark as it incorporates Complainant’s ABBVIE mark, merely replacing the “i” with an “l” and adding the generic top-level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. First, Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Second, Respondent is not licensed or authorized to use Complainant’s mark. Finally, Respondent is not make a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent uses its disputed domain name to impersonate an executive of Complainant, namely Richard Gonzalez, the Chairman of the Board and Chief Executive Officer. On May 5, 2016, one day after the disputed domain was registered, Respondent sent an E-mail to Complainant’s Chief Financial Officer impersonating Mr. Gonzalez, asking about details for wiring money. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and is using the disputed domain name in bad faith. First, Respondent’s impersonation of Complainant’s Chief Executive Officer disrupts and competes with Complainant’s business. Second, Respondent’s use of the domain to impersonate Complainant’s Chief Executive Officer establishes that Respondent had actual knowledge of Complainant’s mark at the time the domain was registered. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark ABBVIE dating back to 2013.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent has used the disputed domain name to send a fraudulent E-Mail impersonating one of Complainant’s executives.
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.”).
Before considering the three elements of the Policy, the Panel must rule on the language of the proceedings.
Complainant requests that this administrative proceeding proceed in the English language pursuant to UDRP Rule 11(a). Complainant makes this request in light of the German language Registration Agreement. Complainant argues that Respondent’s use of the English language in E-Mails sent using the disputed domain name indicates an understanding of the language. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Factors which previous panels have seen as relevant include evidence of Respondent’s understanding of the language of the Complaint. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the German language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant that Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding shall be in English.
The disputed domain name is confusingly similar to Complainant’s mark as it incorporates Complainant’s ABBVIE mark, merely replacing the “i” with an “l” and adding the gTLD “.com.” Panels have held that neither a simple misspelling nor the affixation of the “.com” gTLD suffice to differentiate a respondent’s disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Jerry Damson, Inc. v. Tex. Int’l 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.”). As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent has no license or authorization to use Complainant’s mark. Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark: the Panel notes that the WHOIS information merely lists “Ion Chitoroaga” as registrant and that Respondent has failed to provide any evidence for the Panel’s consideration. As such, the Panel finds no basis in the available record to find Respondent commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Specifically, Respondent used its disputed domain name to impersonate an executive of Complainant, namely Richard Gonzalez, the Chairman of the Board and Chief Executive Officer. Specifically, on May 5, 2016, one day after the disputed domain was registered, Respondent sent an E-mail to Complainant’s Chief Financial Officer impersonating Mr. Gonzalez, asking about details for wiring money. Panels have held that a respondent’s use of a domain to impersonate a complainant’s executive does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Microsoft Corporation v. Terrence Green, FA 1661030 (Forum, Apr. 4, 2016) (finding Respondent’s use of <microsoftcorps.com> to impersonate an executive of Complainant was not within the uses allowable under Policy ¶ 4(c)(i) and 4(c)(iii)). Therefore, the Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Respondent’s impersonation of Complainant’s Chief Executive Officer disrupts and competes with Complainant’s business. Past panels have determined that the use of a domain by a respondent to impersonate a complainant’s executive constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Microsoft Corporation v. Terrence Green, FA 1661030 (Nat. Arb. Forum, Apr. 4, 2016)(finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a 6 finding of bad faith registration and use under Policy ¶ 4(b)(iii)); Chevron Intellectual Property, LLC v. Jack Brooks, FA 1635967 (Nat. Arb. Forum Oct. 6, 2015)(finding that Respondent’s use of <chevron-corps.com> to impersonate an executive of Complainant in emails is in opposition to Complainant and is therefore in bad faith under Policy ¶ 4(b)(iii); Brownell Travel, Inc. v. Troy Haas, FA 1589137 (Nat. Arb. Forum, Dec. 20, 2014)(finding the use of the domain name to send emails impersonating the CEO to the Complainant’s Account Manager to attempt to commit fraud on the Complainant constituted bad faith registration and use under Policy ¶ 4(b)(iii)); The Hackett Group, Inc. v. Brian Herns/The Hackett Group, FA 1597465 (Nat. Arb. Forum, Feb. 6, 2015)(finding that the use of emails associated with the domain name to send fraudulent emails contains the requisite competitive nature under Policy ¶ 4(b)(iii) and this is evidence of bad faith disruption); National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Nat. Arb. Forum, September 22, 2014) (“We are persuaded by the evidence that Respondent’s use of the <nov-inc.com> domain name to commit a commercial fraud while purporting to act in the name of the Complainant, all as alleged in the Complaint, demonstrates bad faith in the registration and use of the domain name”). For this reason, the Panel finds that Respondent registered and is using the domain in bad faith pursuant to Policy ¶ 4(b)(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 <abbvle.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 2, 2016
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