Teva Pharmaceutical Industries Ltd. v. Jose Miranda
Claim Number: FA2211002018680
Complainant is Teva Pharmaceutical Industries Ltd. (“Complainant”), represented by Cecilia Borgenstam of SILKA AB, Sweden. Respondent is Jose Miranda (“Respondent”), Florida.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tevausa.us>, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to Forum electronically on November 2, 2022; Forum received payment on November 2, 2022.
On November 2, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <tevausa.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On November 3, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 23, 2022, 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@tevausa.us. Also on November 3, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 1, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, 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, Teva Pharmaceutical Industries Ltd., is a leading global pharmaceutical company. Complainant has rights in the TEVA mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,567,198 registered November 28, 1989). Respondent’s <tevausa.us> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the TEVA mark in its entirety and adds the term “usa” and the “.us” country code top-level domain (“ccTLD”).
Respondent has no legitimate interests in the <tevausa.us> domain name. Respondent does not own a trademark identical to the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the TEVA mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves to an inactive webpage. Respondent uses the disputed domain name to engage in phishing. The disputed domain name previously redirected to Complainant’s own website.
Respondent registered or uses the <tevausa.us> domain name in bad faith. Respondent registered the disputed domain name in order to disrupt Complainant’s business and divert customers for commercial gain. Respondent registered the disputed domain name in order to participate in phishing. The disputed domain name previously resolved to Complainant’s own website. The disputed domain name currently resolves to an inactive webpage. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the TEVA mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Teva Pharmaceutical Industries Ltd. (“Complainant”), of Petach Kitva, Israel. Complainant is the owner of various domestic registrations for the mark TEVA, which it has continuously used since at least as early as 1989 in connection with its pharmaceutical, veterinary, and sanitary preparations.
Respondent is Jose Miranda (“Respondent”), of Juno Beach, FL, USA. Respondent’s registrar’s address is listed as Phoenix, AZ, USA. The Panel notes that the <tevausa.us> domain name was registered on or about August 10, 2022.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant asserts rights in the TEVA mark based upon the registration of the mark with the USPTO (e.g., Reg. No. 1,567,198 registered November 28, 1989). Registration of a mark with the USPTO is a valid showing of rights in a mark under Policy ¶ 4(a)(i). See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”). The Panel here finds that the Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues Respondent’s <tevausa.us> domain name is identical or confusingly similar to Complainant’s TEVA mark. The addition of a ccTLD and a geographic term fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Am. Express Co. v. McWIlliam, FA 268423 (Forum July 6, 2004) (holding that the ccTLD “.us” does not negate confusing similarity under Policy ¶ 4(a)(i)); see also Cargill, Incorporated v. Sales Office / Cargill Brasil, FA 1737212 (Forum July 21, 2017) (finding the addition of the geographic term “Brasil” does not avoid confusing similarity pursuant to Policy ¶ 4(a)(i).). Here, the disputed domain name contains the TEVA mark in its entirety while adding in the term “usa” and the “.us” ccTLD. The Panel here finds the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
Rights or Legitimate Interests
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant contends that Respondent lacks rights or legitimate interests in the <tevausa.us> domain name since Respondent has not provided evidence that it owns a trademark identical to the disputed domain name. Where a Respondent cannot demonstrate that it owns a trademark identical to the disputed domain name, the Panel may find evidence that the respondent lacks rights or legitimate interests under Policy ¶ 4(c)(i). See Kayak Software Corporation (Delaware Corporation) v. ITlinks.com, FA 1647695 (Forum Dec. 18, 2015) (finding that Respondent did not submit any evidence to satisfy its burden to demonstrate evidence of a trademark on which the disputed domain is based per Policy ¶ 4(c)(i).). Here, Respondent fails to present any evidence that it owns a trademark identical to the disputed domain name. The Panel here finds that Respondent lacks rights or legitimate interests in the domain per Policy ¶ 4(c)(i).
Complainant further contends that Respondent lacks rights or legitimate interests in the <tevausa.us> domain name because Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the TEVA mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name). In addition, a lack of authorization to use a complainant’s mark may also indicate that a respondent is not commonly known by the disputed domain name. See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.). In the instant case the WHOIS information for the disputed domain name lists the registrant as “Jose Miranda”. Complainant further asserts it has not licensed or otherwise authorized Respondent to use Complainant’s TEVA mark. The Panel here finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(iii).
Additionally, Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain name instead resolves to an inactive webpage. Where the Respondent fails to make active use of a domain, the Panel may find the Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) or (iv). See Nutri/System IPHC, Inc. v. Usama Ayub, FA1725806 (Forum June 5, 2017) (holding that “Respondent does not use the <nutrisystemturbo.us> domain for a bona fide offering of goods or services because the domain name resolves to a website that currently is designated as ‘under construction.’”). Here, Complainant provides evidence of the disputed domain name resolving to an inactive webpage. The Panel here finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(ii) or (iv).
Complainant lastly alleges that, because the disputed domain name previously redirected to Complainant’s own website, Respondent has demonstrated its lack of rights or legitimate interest in Complainant’s mark. The use of a domain to redirect users to a Complainant’s own website may indicate a lack of rights or legitimate interest in a disputed domain name. See Better Existence with HIV v. AAA, FA 1363660 (Forum Jan. 25, 2011) (finding that “even though the disputed domain name still resolves to Complainant’s own website, Respondent’s registration of the disputed domain name in its own name fails to create any rights or legitimate interests in Respondent associated with the disputed domain name under Policy ¶ 4(a)(ii)”). In the present instance Complainant provides evidence that the disputed domain name previously redirected to Complainant’s own website. Here the Panel finds the above further supports the conclusion that Respondent lacks rights or legitimate interests in the disputed domain name, per Policy ¶ 4(a)(ii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent registered and uses the <tevausa.us> domain name in bad faith because Respondent disrupts Complainant’s business. Use of an email address incorporating the disputed domain name to impersonate a Complainant for fraudulent purposes can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)). In this matter Complainant provides evidence of emails incorporating the disputed domain name being used to impersonate Complainant for fraudulent purposes. The Panel here finds that Respondent registered or used the disputed domain name in bad faith per Policy ¶ 4(b)(iii).
Complainant argues that, because the disputed domain name currently resolves to an inactive webpage, Respondent has demonstrated bad faith registration or use. Inactive holding may in and of itself be considered evidence of bad faith registration or use under Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”). As previously noted, Complainant provides evidence of the disputed domain name last resolving to an inactive webpage. The Panel here finds that evidence supports a conclusion that Respondent’s registration or use of the disputed domain name was in bad faith, pursuant to Policy ¶ 4(a)(iii).
Complainant argues that, because the disputed domain name previously resolved to Complainant’s own website, Respondent has demonstrated bad faith registration or use. Use of a domain to redirect internet users to a Complainant’s own website may be considered evidence of bad faith registration or use under Policy ¶ 4(a)(iii). See MySpace, Inc. v. Gomez, D2007-1231 (WIPO Oct. 17, 2007) (finding bad faith when "Respondent has been using the disputed domain name to link to the Complainant’s own website. Inherent in that conduct is the risk that the Respondent may at any time cause Internet traffic to re-direct to a website that is not that of, or associated with, the Complainant."). As previously noted, Complainant provides evidence of the disputed domain name previously resolving to Complainant’s own website. The Panel here finds that Respondent’s registration and use of the disputed domain name was and is in bad faith, pursuant to Policy ¶ 4(a)(iii).
Finally, Complainant also contends that in light of the fame and notoriety of Complainant's TEVA mark, it is inconceivable that Respondent could have registered the <tevausa.us> domain name without actual and/or constructive knowledge of Complainant's rights in the mark. The Panel here agrees with Complainant, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Here, Complainant provided evidence of the notoriety of its mark and Respondent’s use of the mark to impersonate Complainant which together strongly indicate that Respondent had actual knowledge of Complainant’s rights in the mark. The Panel here finds the above to further support a finding of Respondent’s bad faith registration and use per Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
DECISION
As the Complainant has established all three elements required under the usTLD Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <tevausa.us> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: December 12, 2022
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