URS DEFAULT DETERMINATION

Eli Lilly and Company v. Alena Pyxalova
Claim Number: FA1701001712773

DOMAIN NAME

<cialis.fashion>

PARTIES

	Complainant: Eli Lilly and Company of Indianapolis, IN, United States of America
	Complainant Representative: Faegre Baker Daniels, LLP Stephanie A. Gumm of Indianapolis, IN, USA

	Respondent: Alena Pyxalova Alena Pyxalova of Moscow, II, RU

REGISTRIES and REGISTRARS

	Registries: Top Level Domain Holdings Limited
	Registrars: Public Domain Registry

EXAMINER

	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 Examiner in this proceeding.
	Richard W. Hill, as Examiner

PROCEDURAL HISTORY

	Complainant Submitted: January 17, 2017
	Commencement: January 18, 2017
	Default Date: February 2, 2017
	Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").

RELIEF SOUGHT

Complainant requests that the domain name be suspended for the life of the registration.

STANDARD OF REVIEW

Clear and convincing evidence.

FINDINGS and DISCUSSION

Findings of Fact: [OptionalComment]

Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.

[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant

Complainant has obtained at least 190 registrations of the CIALIS trademark covering 132 countries dating back to as early as 1999. As a result, Complainant's rights in the CIALIS mark predate Respondent's registration date of January 3, 2017 for <cialis.fashion> (the “Domain”). The Domain is identical to Complainant's mark.

[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant

By using the mark CIALIS in the Domain, the Respondent lures consumers in search of Complainant’s CIALIS brand product to a website which advertises and sells counterfeit pharmaceutical products. The activity on this website is particularly alarming because the products on the site have not been approved by any national health authority in the U.S. or elsewhere. As a result, the socalled “CIALIS” products they are selling are unlawful, counterfeit pharmaceuticals not only violating Complainant’s rights, but more importantly posing a serious risk to the health and safety of the public. Rights or legitimate interests cannot be created where the user of the domain at issue would not choose such a name unless one was seeking to create an impression of association with the Complainant. Consequently, Respondent has no rights or legitimate interests in the Domain.

[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant

As already noted, Respondent is using the Domain in furtherance of criminal conduct and through which Respondent derives a financial benefit by directing Internet users to an illegal online pharmacy. Respondent’s use of Complainant’s CIALIS mark in the Domain is potentially harmful to the health of unsuspecting consumers who may purchase unlawfully sold pharmaceutical products advertised through Respondent’s website under the mistaken impression that they will be receiving safe and effective drugs. In this case, Registrant is actively using the Domain for an illegitimate purpose in furtherance of criminal activity. For all of these reasons, Respondent’s use of the Domain constitutes use and registration in bad faith.

FINDING OF ABUSE or MATERIAL FALSEHOOD

The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.

The Examiner finds as follows:

The Complaint was neither abusive nor contained material falsehoods.

DETERMINATION

After reviewing the parties’ submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for the duration of the registration:

cialis.fashion

Richard W. Hill
Examiner
Dated: February 3, 2017

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