Novartis AG v. Emily Wolf / Hellade
Claim Number: FA1901001826073
Complainant is Novartis AG (“Complainant”), represented by Maury M. Tepper of Tepper & Eyster, PLLC, North Carolina, USA. Respondent is Emily Wolf / Hellade (“Respondent”), Wisconsin, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sandozgroup.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he has acted independently and impartially and to the best of his 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 January 21, 2019; the Forum received payment on January 21, 2019.
On January 21, 2019, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <sandozgroup.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 22, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 11, 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@sandozgroup.com. Also on January 22, 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 February 14, 2019, 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 global healthcare company based in Switzerland that provides solutions to address the evolving needs of patients worldwide. Complainant has rights in the SANDOZ mark based upon registration in the United States in 1934. The mark is registered elsewhere around the world and it is well known.
Complainant alleges that the disputed domain name is confusingly similar to its mark as it includes the mark in its entirety, merely adding the descriptive term “group” along with the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s SANDOZ mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to impersonate an executive of Complainant in furtherance of a fraudulent phishing scheme. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent impersonates Complainant as part of an e-mail phishing scheme. Finally, Respondent had constructive notice of Complainant’s rights in the SANDOZ mark when it registered and subsequently used the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark SANDOZ and uses it to market pharmaceutical products around the world. The mark is well known.
Complainant’s rights in its mark date back to 1934.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent uses the disputed domain name to pass off as Complainant to conduct a fraudulent phishing scheme.
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 disputed domain name is confusingly similar to Complainant’s SANDOZ mark as it includes the mark in its entirety and merely adds the descriptive term “group” and a gTLD to the mark. The addition of a generic and/or descriptive term and a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel therefore finds that the <sandozgroup.com> domain name is confusingly similar to the SANDOZ mark per Policy ¶ 4(a)(i).
Respondent is not licensed or authorized to use the SANDOZ mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). 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.). Here, the WHOIS information of record identifies Respondent as “Emily Wolf / Hellade.” The Panel therefore finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to attempt to impersonate Complainant as part of a fraudulent scheme. Specifically, Respondent uses an e-mail address associated with the disputed domain name to impersonate Complainant’s CFO and sends phishing e-mails to Complainant’s customers that are designed to solicit information under false pretenses. Use of a domain name to pass off as a complainant in order to conduct a fraudulent scheme is not indicative of rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”). Accordingly, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods and services under Policy ¶ 4(c)(i), or for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii), and the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
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.
Indeed, as already noted, Respondent is attempting to impersonate Complainant in order to conduct a fraudulent scheme for commercial gain. Use of a domain name to impersonate a complainant in furtherance of a fraudulent scheme may constitute bad faith pursuant to Policy ¶ 4(b)(iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”). Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sandozgroup.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 15, 2019
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