Elanco Animal Health Inc. v. Oleksandr Lemeshko / Ковтушин Микола / Nikolay Kovtushin
Claim Number: FA2306002047899
Complainant is Elanco Animal Health Inc. (“Complainant”), represented by Corsearch, Inc., Texas, USA. Respondent is Oleksandr Lemeshko / Ковтушин Микола / Nikolay Kovtushin (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <serestocollars.net>, <serestofleas.com>, <serestowholesale.com>, <serestofleacollars.com> and <serestocollars.org> (the “Domain Names”), registered with Godaddy.Com, Llc and Hosting Ukraine Llc., (the “Registrars”).
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on June 7, 2023. Forum received payment on June 7, 2023.
On June 8, 9, 15 and 16, 2023, the Registrars confirmed by e-mail to Forum that the Domain Names are registered with the Registrars and that Respondent is the current registrant of the names. The Registrars have verified that Respondent is bound by the Registrars’ registration agreements 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 June 21, 2023, Forum served the Complaint and all Annexes, including an English and Ukrainian language Written Notice of the Complaint, setting a deadline of July 11, 2023 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@serestocollars.net, postmaster@serestofleas.com, postmaster@serestowholesale.com, postmaster@serestofleacollars.com, postmaster@serestocollars.org. Also on June 21, 2023, the English and Ukrainian language 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 July 19, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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 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, 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 Names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder”. Paragraph 1(d) of the Forum's Supplemental Rules defines “The Holder of a Domain Name Registration” as “the single person or entity listed in the registration information, as verified by the Registrar, at the time of commencement” and sub-paragraph 1(d)(i) provides that a Complainant wishing to make an argument for a single Respondent having multiple aliases must comply with Supplemental Rules 4(c) and 17(a)(i).
The <serestocollars.net>, <serestofleas.com>, <serestowholesale.com> and <serestofleacollars.com> domain names resolve to websites displaying Complainant’s mark and logo and purporting to offer the same counterfeit or unauthorized versions of Complainant’s products. Although the <serestocollars.org> domain name does not resolve to an active website, it was registered on the same day as the <serestocollars.net> domain name, in the name of the same registrant, Oleksandr Lemeshko. Hence Complainant has shown that the Domain Names are effectively controlled by the same person or entity, which is operating under several aliases. Accordingly, this decision refers to Oleksandr Lemeshko / Ковтушин Микола / Nikolay Kovtushin as “Respondent”.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDINGS
The Panel notes that the Hosting Ukraine Llc. registration agreement is in Ukrainian while the Godaddy.Com, Llc registration agreement is in English. Pursuant to Rule 11(a), the language of the proceeding in relation to the <serestofleas.com>, <serestowholesale.com> and <serestofleacollars.com> domain names shall be Ukrainian unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant requests that the proceeding be conducted in English, noting that the Domain Names contain English words - “collars,” “fleas,” “wholesale”; the content on the websites is in English; a previous UDRP proceeding, FA2212002024356 against Oleksandr Lemeshko took place in English; and Paypal records and email confirmation of orders placed on Respondent’s websites were in English.
In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding. Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English and Ukrainian language Written Notice of the Complaint and, absent a Response, determines that the proceedings may be conducted in English.
A. Complainant
Complainant, Elanco Animal Health Inc., is an American pharmaceutical company which produces medicines and vaccinations for pets and livestock. Complainant and its subsidiary, Bayer Animal Health GmbH, have rights in the SERESTO mark through numerous registrations, including with the United States Patent and Trademark Office (“USPTO”). Respondent’s Domain Names are confusingly similar to Complainant’s mark.
Respondent lacks rights and legitimate interests in the Domain Names. Respondent is not commonly known by the Domain Names, nor has Complainant authorized or licensed Respondent to use its SERESTO mark in the Domain Names. Respondent does not use the Domain Names for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead passes uses the <serestocollars.net>, <serestofleas.com>, <serestowholesale.com> and <serestofleacollars.com> domain names to pass itself off as Complainant while selling unauthorized products and potentially engaging in phishing. Respondent does not use the domain name <serestocollars.org> for a bona fide offering of goods and services or legitimate noncommercial or fair use as the resolving website lacks any substantive content.
Respondent registered the Domain Names in bad faith with actual knowledge of Complainant’s rights in the SERESTO mark and uses them in bad faith to disrupt Complainant’s business while attracting users for commercial gain and creating a likelihood of confusion. Additionally, Respondent potentially engages in phishing.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 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 has shown that it has rights in the SERESTO mark through registration by its wholly owned subsidiary, Bayer Animal Health GmbH, of the mark with multiple trademark organizations including the USPTO (e.g. Reg. No. 4,317,500, registered on April 9, 2013). The Panel finds Respondent’s <serestocollars.net>, <serestofleas.com>, <serestowholesale.com>, <serestofleacollars.com> and <serestocollars.org> Domain Names to be confusingly similar to Complainant’s mark as they incorporate the entire mark and add generic or descriptive terms which do not distinguish the Domain Names from the mark The inconsequential gTLDs may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the Domain Names for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the Domain Names or names corresponding to the Domain Names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the Domain Names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the Domain Names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The Domain Names were registered on the following dates, in each case long after Complainant registered its SERESTO mark:
- <serestocollars.net> and <serestocollars.org>: August 26, 2022.
- <serestowholesale.com>: January 17, 2023.
- <serestofleas.com>: January 27, 2023.
- <serestofleacollars.com>: March 17, 2023.
The websites to which the <serestocollars.net>, <serestofleas.com>, <serestowholesale.com> and <serestofleacollars.com> domain names resolve sell flea and tick collars that bear Complainant’s trademark and images. MX records have been set up for those domain names, enabling phishing emails to be sent from them. The website to which the <serestocollars.org> domain name resolves lacks any substantive content.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the Domain Names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the Domain Names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the Domain Names.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the Domain Names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the Domain Names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s SERESTO mark when Respondent registered the Domain Names and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to four of Respondent’s websites, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s websites and of the goods promoted on those websites. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
As to the <serestocollars.org> domain name, it was clearly registered in bad faith on the same day as the <serestocollars.net> domain name and there is no plausible good faith use to which it may be put. See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <serestocollars.net>, <serestofleas.com>, <serestowholesale.com>, <serestofleacollars.com> and <serestocollars.org> Domain Names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: July 20, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page