Complainant is Pfizer Inc. of New York, New York, United States of America ("United States"), represented by Arnold & Porter Kaye Scholer LLP, United States.
Respondent is Dale Leach of Bonita Springs, Florida, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 28, 2017. On November 29, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 30, 2017, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing Respondent's contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on December 7, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 27, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on January 2, 2018.
The Center appointed M. Scott Donahey as the sole panelist in this matter on January 22, 2018. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
Complainant is a large pharmaceutical company with operations in more than 150 countries worldwide. Complainant has used the PFIZER mark since at least as early as 1849, and first obtained a registered mark from the United States Patent and Trademark Office on August 24, 1948. Complainant also owns United States trademark registration number 626,088, for PFIZER, registered on May 1, 1956 (Complaint, Annex 6). Complainant is the registrant of the domain name , which it first used to resolve to a website in 1996 at which it provides information about its pharmaceutical operations and products. Because of its continuous use of the PFIZER mark since 1849, and the worldwide recognition of the PFIZER mark (Complaint, Annexes 6 and 7), Complainant's mark has become famous.
Respondent registered the disputed domain name on August 22, 2017 (Complaint, Annex 1). Respondent uses the disputed domain name to resolve to a website at which designer goods associated with the industry of high fashion, offering high fashion goods at prices below those asked by other retailers (Complaint, Annexes 2, 4 and 5). 5. Parties' Contentions A. Complainant
Complainant alleges that the disputed domain name is confusingly similar to Complainant's famous and long-used PFIZER mark, that Complainant has never authorized in any way Respondent to use its famous mark for any purpose, that Respondent has no rights or legitimate interests in respect of the PFIZER mark, and that Respondent has registered and is using the disputed domain name in bad faith. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute:
"A Panel shall 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 directs that the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and,
(iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The disputed domain name consists of Complainant's famous PFIZER mark to which has been appended the common English word "near". UDRP decisions have long held that a domain name consisting of a trademark and a common word is confusingly similar to the trademark contained therein. Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant's mark. B. Rights or Legitimate Interests
While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 2.1.
In the present case Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Respondent has used the disputed domain name to resolve to a website at which high fashion designer goods are offered at prices far below those offered by other retailers, prices so low that any goods delivered for such prices and bearing labels of the purported high fashion companies can only be counterfeit and therefore any sales of such goods would be fraudulent. Accordingly, the Panel finds that the disputed domain name has been registered and is being used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to Complainant.
M. Scott Donahey
Sole Panelist
Date: January 22, 2018
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