DECISION

 

AbbVie Inc. and AbbVie AB v. alibaba / alibaba alibaba

Claim Number: FA2409002116102

 

PARTIES

Complainant is AbbVie Inc., United States and AbbVie AB, Sweden ("Complainant"), represented by Kim Boyle of Richard Law Group, Inc., United States. Respondent is alibaba / alibaba alibaba ("Respondent"), United States.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <duopa351.top>, <duopa353.top>, <duopa352.top> and <duopa355.top>, registered with NameSilo, LLC.

 

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.

 

David E. Sorkin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 18, 2024; Forum received payment on September 18, 2024.

 

On September 18, 2024, NameSilo, LLC confirmed by email to Forum that the <duopa351.top>, <duopa353.top>, <duopa352.top> and <duopa355.top> domain names are registered with NameSilo, LLC and that Respondent is the current registrant of the names. NameSilo, LLC has verified that Respondent is bound by the NameSilo, LLC 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 September 19, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 9, 2024 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registrations as technical, administrative, and billing contacts, and to postmaster@duopa351.top, postmaster@duopa353.top, postmaster@duopa352.top and postmaster@duopa355.top. Also on September 19, 2024, 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 registrations as technical, administrative, and billing contacts.

 

Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.

 

On October 10, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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 names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant, a United States corporation and its subsidiary in Sweden, is a biopharmaceutical company that employs approximately 50,000 persons in more than 70 countries, with annual revenues exceeding $58 billion. Complainant announced in January 2015 that the U.S. Food and Drug Administration had approved a new treatment for Parkinson's disease, a product marketed by Complainant under the DUOPA mark. Complainant owns a United States trademark registration issued in 2015 for DUOPA in standard character form.

 

The disputed domain names <duopa351.top>, <duopa353.top>, <duopa352.top> and <duopa355.top> were registered in July 2024. The names are registered in the name of a privacy registration service on behalf of Respondent. The domain names <duopa352.top> and <duopa355.top> are being used for websites composed of sexually explicit images and links to other pornographic websites. The other two disputed domain names, <duopa351.top> and <duopa353.top>, redirect users to the website at <duopa355.top>. Complainant states that Respondent is not commonly known by the domain name; is not an authorized vendor, supplier or distributor of Complainant's goods and services; and is not licensed to use Complainant's mark.

 

Complainant contends on the above grounds that each of the disputed domain names <duopa351.top>, <duopa353.top>, <duopa352.top> and <duopa355.top> is confusingly similar to its DUOPA mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.

 

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 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/; UDRP Perspectives on Recent Jurisprudence, §§ 0.2, 0.8 (updated Aug. 30, 2024), available at https://udrpperspectives.org/; 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").

 

Identical and/or Confusingly Similar

Each of the disputed domain names <duopa351.top>, <duopa353.top>, <duopa352.top> and <duopa355.top> incorporates Complainant's registered DUOPA trademark, adding a three-digit number and the ".top" top-level domain. These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., 

AbbVie, Inc. & AbbVie AB v. ZhangHua Zhong / Hua Zhong Zhang, FA 1817277 (Forum Dec. 26, 2018) (finding <duopa.top> confusingly similar to DUOPA); eBay Inc. v. Du Hongxia/Liu Yujiao/WHOIS AGENT, DOMAIN WHOIS PROTECTION SERVICE, D2014-2015 (WIPO Jan. 7, 2015) (finding <ebay351.com>, <ebay351.net>, <ebay352.com>, <ebay352.net>, <ebay353.net>, <ebay355.com>, and <ebay355.net> confusingly similar to EBAY). The Panel considers the disputed domain names to be confusingly similar to a mark in which Complainant has rights.

 

Rights or Legitimate Interests

Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, 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 names incorporate Complainant's registered mark without authorization, and their only apparent use has been for commercial websites composed of sexually explicit material or to redirect or link to such websites. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., AbbVie Inc. & AbbVie AB v. Fa Cai, FA 2064665 (Forum Oct. 26, 2023) (finding lack of rights or interests in similar circumstances); AbbVie, Inc. & AbbVie AB v. ZhangHua Zhong / Hua Zhong Zhang, supra (same); AbbVie, Inc. & AbbVie AB v. Jingbing Shen, FA 1789854 (Forum July 2, 2018) (same).

 

Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, 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 names.

 

Registration and Use in Bad Faith

Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iv) of the Policy, 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 used a privacy registration service and what appears to be entirely fictitious underlying registration information to register four domain names incorporating Complainant's registered mark, and is using them for commercial websites composed of sexually explicit material or to redirect or link to such websites. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., AbbVie Inc. & AbbVie AB v. Fa Cai, supra (finding bad faith registration and use in similar circumstances); AbbVie, Inc. & AbbVie AB v. ZhangHua Zhong / Hua Zhong Zhang, supra (same); AbbVie, Inc. & AbbVie AB v. Jingbing Shen, supra (same). The Panel so finds.

 

DECISION

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

 

Accordingly, it is Ordered that the <duopa351.top>, <duopa353.top>, <duopa352.top> and <duopa355.top> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

David E. Sorkin, Panelist

Dated: October 10, 2024