Teleflex Incorporated v. xxx xxx
Claim Number: FA2005001896416
Complainant is Teleflex Incorporated ("Complainant"), represented by Kevin M. Bovard of Baker & Hostetler LLP, Pennsylvania, USA. Respondent is xxx xxx ("Respondent"), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <telleflex.com>, registered with NameCheap, Inc..
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 14, 2020; the Forum received payment on May 14, 2020.
On May 15, 2020, NameCheap, Inc. confirmed by email to the Forum that the <telleflex.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 May 19, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 8, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@telleflex.com. Also on May 19, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 10, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a global provider of medical technology products with over 14,000 employees and annual revenues exceeding $2 billion. Complainant was incorporated under the name Teleflex Incorporated in 1943 and owns trademark registrations for TELEFLEX in the United States, the European Union, and other jurisdictions.
Respondent registered the disputed domain name <telleflex.com> through a privacy registration service in April 2020. Complainant asserts that the underlying registration data provided by Respondent is false, noting that there is not a registered business entity in New York State under the name "xxx xxx"; the street address provided by Respondent does not exist; and the zip code in Respondent's address does not match the city. Complainant states that Respondent is not commonly known by the disputed domain name and that Complainant has not authorized, licensed, or endorsed Respondent’s use of its mark.
The disputed domain name resolves to a placeholder web page that states "THIS SITE IS BRAND NEW" and "PLEASE CHECK BACK AGAIN SOON." Complainant states that the domain name is being used in connection with a fraudulent email scam, in email messages addressed to Complainant's customers soliciting payments by impersonating an employee of Complainant.
Complainant contends on the above grounds that the disputed domain name <telleflex.com> is confusingly similar to its TELEFLEX mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <telleflex.com> corresponds to Complainant's registered TELEFLEX trademark, with the additional of a letter "L" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Teleflex Inc. v. Suspended Domain, FA 1840385 (Forum May 25, 2019) (finding <telefllex.co> confusingly similar to TELEFLEX); Teleflex Inc. v. Leisa Idalski, FA 1794131 (Forum July 31, 2018) (finding <teleflexs.com> confusingly similar to TELEFLEX); Lincoln Electric Co. v. David Vargo, FA 1725364 (Forum May 10, 2017) (finding <lincollnelectric.com> confusingly similar to LINCOLN ELECTRIC). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use is in connection with a fraudulent phishing scheme. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Teleflex Inc. v. Suspended Domain, supra (finding lack of rights or interests in similar circumstances); Teleflex Inc. v. Leisa Idalski, supra (same); Lincoln Electric Co. v. David Vargo, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent'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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent's registration of a domain name obviously calculated to create confusion with Complainant's mark, and its use of that domain name in connection with a fraudulent phishing scheme, are indicative of bad faith registration and use under the provisions cited above. See, e.g., Teleflex Inc. v. Suspended Domain, supra (finding bad faith in similar circumstances); Teleflex Inc. v. Leisa Idalski, supra (same); Lincoln Electric Co. v. David Vargo, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <telleflex.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 14, 2020
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