Abbott Laboratories v. Milen Radumilo
Claim Number: FA1901001824865
Complainant is Abbott Laboratories (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <abbottt.com> (‘the Domain Name’), registered with Tucows Domains Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 14, 2019; the Forum received payment on January 14, 2019.
On January 14, 2019, Tucows Domains Inc. confirmed by e-mail to the Forum that the <abbottt.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 January 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 4, 2019 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@abbottt.com. Also on January 15, 2019, 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 10, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant is the owner of the trade mark ABBOTT registered, inter alia, in the USA for pharmaceuticals over 15 years ago.
The Domain Name registered in 2018 is confusingly similar to the Complainant’s trade mark merely adding an additional ‘t’ and the gTLD .com which 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, is not commonly known by the Domain Name, is not authorized by the Complainant and has been used to point to third party sites including competitors of the Complainant and potential malware sites. This is not a bona fide offering of goods or services or a noncommercial legitimate or fair use. The Domain Name was subject to privacy protection and has been offered for sale for a price that exceeds out of pocket registration expenses.
Selling a domain name for profit and use to point to links to competitors or to potential malware sites is bad faith registration and use and the links to competing pharmaceutical companies shows the Respondent is aware of the Complainant and its business.
The Respondent has been found to have acted in bad faith in numerous previous adverse UDRP decisions which is a pattern of conduct and further evidence of bad faith. As is the use of a privacy protection service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark ABBOTT registered, inter alia, in the USA for pharmaceuticals with first use recorded as 2005.
The Domain Name registered in 2018 has been used for links to the Complainant’s competitors and sites connected with malware. The Domain Name has been offered for sale.
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.”).
Identical and/or Confusingly Similar
The Domain Name consists of the Complainant’s ABBOTT mark (registered, inter alia, in the USA for pharmaceuticals and used since at least 2005), the letter ‘t’ and the gTLD .com.
Panels have found that adding one letter to the end of a registered mark does not distinguish a domain name from that mark. See Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding that twitcch.tv is confusingly similar to the TWITCH TV trade mark because the domain name consisted of a common misspelling of the mark by merely adding the letter ‘c’).
The gTLD .com does not serve to distinguish the Domain Name from the ABBOTT mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name has pointed to a site with pay per click links. The use is commercial, thus it cannot be a legitimate noncommercial or fair use. There is no indication on the resolving website for the Domain Name that there is no authorization from the Complainant. The Panel finds this use is confusing. As such it cannot amount to a bona fide offering of goods and services. See Ashley Furniture Industries Inc. v. domain admin /private registrations aitken Gesellschaft, FA 1506001626253 (Forum July 29, 2015) (linking to pay per click links does not amount to a bona fide offering of goods and services or a legitimate noncommercial fair use).
Further, typosquatting, offering a domain name for sale for a sum exceeding out of pocket expenses, and pointing to sites with connections to malware are further indications of a lack of rights or legitimate interests in domain names.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s mark in what appears on the face of it to be a typosquatting registration.
Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) ('registering a domain name which entirely incorporates a famous mark with additional letter (s) in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
In the opinion of the Panelist, the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe the Domain Name is connected to or approved by the Complainant as it offers links to competitors of the Complainant under a sign confusingly similar to the Complainant’s mark. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the website likely to disrupt the business of the Complainant under Policy 4(b)(iii) and (iv). See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re: pay per click links.
The Domain Name has also been pointed to sites with connections to malware contrary to Policy 4(b)(iii), offered for sale for a sum in excess of out of pocket expenses contrary to Policy 4(b)(i), and the Respondent has been subject to a number of adverse decisions suggesting a pattern of conduct under Policy 4(b)(ii).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and there is no need to consider further alleged grounds of 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 <abbottt.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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