DECISION

 

CVS Pharmacy, Inc. v. Diane Mabry

Claim Number: FA2402002082755

PARTIES

Complainant is CVS Pharmacy, Inc. ("Complainant"), represented by Miriam D. Trudell of Sheridan Ross P.C., Colorado, USA. Respondent is Diane Mabry ("Respondent"), New York, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <cvshealthus.org>, registered with HOSTINGER operations, UAB.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 6, 2024; Forum received payment on February 6, 2024.

 

On February 7, 2024, HOSTINGER operations, UAB confirmed by e-mail to Forum that the <cvshealthus.org> domain name is registered with HOSTINGER operations, UAB and that Respondent is the current registrant of the name. HOSTINGER operations, UAB has verified that Respondent is bound by the HOSTINGER operations, UAB 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 February 9, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 29, 2024 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@cvshealthus.org. Also on February 9, 2024, 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 March 1, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it has been using the house mark and company name CVS for over 50 years in connection with prescription and over-the-counter medicines, and with the retail supply services of beauty aids, personal and home health care products, household, grocery and pharmacy products, as well as on its own line of such products. Complainant has also been using the mark CVS HEALTH since at least as early as 2014 in connection with such medicines and retail drug store and pharmacy supply services, pharmaceutical insurance claims processing services and services providing medical information. Complainant has rights in the CVS mark based on its registration in the United States in 1971. Complainant also has rights in the CVS HEALTH mark through its registration in the United States in 2016.

 

Complainant alleges that the disputed domain name is confusingly similar to its CVS HEALTH trademark as it incorporates the mark in its entirety, merely adding the geographic term "US" and the generic top-level domain ("gTLD") ".com." The disputed domain name is also confusingly similar to Complainant's CVS mark. Complainant cites UDRP precedents to support its position.

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent does not use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, Respondent is using the disputed domain name to pretend to facilitate class action settlement payments to a vaguely defined class of plaintiffs in a fictitious case against Complainant, while in actuality, the resolving website is used to phish for the personal information of Internet users who navigate to the disputed domain name. The resolving website, which displays Complainant's mark and distinctive logo, states: "the United States Superior Court of Justice has certified and agreed to open this claim". In fact, there is no such court known as the United States Superior Court of Justice nor is there any such claim pending. The class action case referenced on the resolving website does not exist. The resolving website displays a button to "submit a claim" for class action payments which then opens a form prompting Internet users to enter personal information including a name, address and social security number in order to receive such fake class action settlement payments. Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent has registered and is using the disputed domain name in bad faith. The resolving website is used for phishing. Respondent had actual knowledge of Complainant's mark. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the marks CVS and CVS HEALTH and uses them in connection with prescription and over-the-counter medicines, and with the retail supply services of beauty aids, personal and home health care products, household, grocery and pharmacy products.

 

Complainant's rights in its marks date back to, respectively, 1971 and 2016.

 

The disputed domain name was registered in 2023.

 

Complainant has not licensed or otherwise authorized Respondent to use its marks.

 

Respondent uses the disputed domain name to conduct a phishing scheme; the resolving website displays Complainant's mark and distinctive logo.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The disputed domain incorporates the Complainant's CVS HEALTH mark in its entirety, merely adding the geographic term "US" and the generic top-level domain ("gTLD") ".com". Further, the disputed domain name incorporates Complainant's CVS mark in its entirely, merely adding the generic/descriptive term "health", together with the geographic term "US" and the generic top-level domain ("gTLD") ".com". Under Policy ¶ 4(a)(i), adding a gTLD and/or generic/descriptive terms and/or geographic terms and/or relevant or meaningless letters is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) ("The domain name contains the mark in its entirety, with only the addition of the generic letters 'sb' and the digits '2018,' plus the generic Top Level Domain ("gTLD") '.com.'  These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy."). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant's marks under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named "Fred Wallace" as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as "Diane Mabry". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Complainant provides evidence showing that Respondent is using the disputed domain name to pretend to facilitate class action settlement payments to a vaguely defined class of plaintiffs in a fictitious case against Complainant, while in actuality, the resolving website is used to phish for the personal information of Internet users who navigate to the disputed domain name. The resolving website, which displays Complainant's mark and distinctive logo, states: "the United States Superior Court of Justice has certified and agreed to open this claim". In fact, there is no such court known as the United States Superior Court of Justice nor is there any such claim pending. The class action case referenced on the resolving website does not exist. The resolving website displays a button to "submit a claim" for class action payments which then opens a form prompting Internet users to enter personal information including a name, address and social security number in order to receive such fake class action settlement payments. Previous panels have determined that a respondent's attempt to pass itself off as a complainant, or a respondent's attempt to phish, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) ("The Panel finds that Respondent's attempt to "phish" for users' personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)."). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's marks. 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 uses the disputed domain name to phish for Internet users' personal information. This is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant's customers); see also Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). Thus the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).

 

Further, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the resolving website displays Complainant's mark and distinctive logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); see also 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). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <cvshealthus.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: March 1, 2024