The Complainant is Teva Pharmaceutical Industries Limited, Israel, represented by SILKA Law AB, Sweden.
The Respondent is Milen Radumilo, Romania. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 18, 2020. On March 18, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 2, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 2, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on April 4, 2020. The Center verified that the Complaint together with the amendment to 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 the Respondent of the Complaint, and the proceedings commenced on April 7, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 27, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 4, 2020. The Center appointed Jane Lambert as the sole panelist in this matter on May 11, 2020. 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 The Complainant is an international pharmaceutical company. It carries on business in over 60 countries and employs 45,000 persons around the world. It has registered the word TEVA as a trade mark in many countries including United States of America (“United States” or “US”) trade mark registration number 1567918, registered on November 28, 1989. The disputed domain name was registered on December 24, 2019. The disputed domain name redirects to a holding page with sponsored links and potential malware, which is annexed to the Complaint. 5. Parties’ Contentions A. Complainant The Complainant claims the transfer of the disputed domain name on the grounds that: - the disputed domain name is confusingly similar to a trade mark in which the Complainant has rights; - the Respondent has no rights or legitimate interest in respect of the disputed domain name; and - the dispute domain name has been registered and used in bad faith. As to the first ground, the Complainant gives particulars of its size and strength in the pharmaceutical industry. It mentions its trade mark registrations including the US one mentioned above. It also mentions its domain name registrations. The Complainant complains that the disputed domain name incorporates its US mark in its entirety. That amounts to a misrepresentation of a connection with the Complainant which is reinforced by the addition of the words “for health”. The Complainant refers to the panel’s dicta in Mozilla Foundation and Mozilla Corporation v. Ranjeet Kumar, Samsung India Private Limited,WIPO Case No. D2018-2815: “The disputed domain name Referring also to sections 1.7 and 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the Complainant also submits that the generic Top-Level Domain (“gTLD”) “.com” should be disregarded. In respect of the second ground, the Complainant submits: - there can be no bona fide offering of goods or services where the domain name incorporates a trade mark that is not owned by the Respondent; - the disputed domain name is not one that would legitimately be chosen by a third party without a right or licence to use the same; - the disputed domain name is not descriptive of any goods or services; - the disputed domain name has not been used for a bona fide offering of goods or services; and - the disputed domain name redirects to various websites including one that distributes malware. The Complainant also relies on section 2.13 of the WIPO Overview 3.0 and the cases referred to therein. On the last point, the Complainant argues that the Respondent has used the disputed domain name in bad faith as it has knowingly registered a confusingly similar domain name that consists of the trade mark in order to divert Internet users to the respondent’s website. In support of that argument it points to the incorporation of the Complainant’s trade mark in the disputed domain name and the use of the disputed domain name for a page with sponsored links and searches, and occasionally the distribution of malware. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The agreement for the registration of the disputed domain name incorporates Paragraph 4(a) of the Policy: “Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a ‘complainant’) asserts to the applicable Provider, in compliance with the Rules of Procedure, that: (i) your domain name is identical or confusingly similar to a trade mark or service mark in which the complainant has rights; and (ii) you have no rights or legitimate interests in respect of the domain name; and (iii) your domain name has been registered and is being used in bad faith. In the administrative proceeding, the complainant must prove that each of these three elements are present.” A. Identical or Confusingly Similar The Panel is satisfied that the first element is present. The Complaint annexes evidence that the Complainant is the registered proprietor of the mark TEVA (registration number 1567918) in the United States. That is a trade mark in which the Complainant has rights. The disputed domain name incorporates the entirety of the TEVA mark together with the words “for health” and the generic Top-Level Domain (“gTLD”) “.com”. As the trade mark is recognizable in the disputed domain name, the addition of the words “for health” and the gTLD “.com” do not prevent a finding of confusing similarity. See sections 1.7, 1.8, and 1.11 of the WIPO Overview 3.0. The Panel holds that the disputed domain name is confusingly similar to a trade mark in which the Complainant has rights. B. Rights or Legitimate Interests The Panel finds the second element to be present. Section 2.1 of the WIPO Overview 3.0 advises: “While the overall burden of proof in UDRP proceedings is on the complainant, 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.” Because of the registration of the TEVA mark throughout the world and the goodwill that the Complainant is likely to enjoy in the mark by reason of its sales and marketing, it would be unlikely for a business to trade under the same or similar name or use a similar trade mark without risking an action for trade mark infringement or passing off or similar cause of action absent the Complainant’s express or implied licence. The Complainant has been very clear that the Respondent has no connection with or any licence from the Complainant. Furthermore, no evidence has been presented which would suggest that the Respondent has made use of, or demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services, that the Respondent has been commonly known by the disputed domain name, or that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. Instead it appears the Respondent has registered and used the disputed domain name to trade on the Complainant’s trademark and associated goodwill to profit through sponsored links. That is enough to shift the evidential burden to the Respondent. That party was allowed ample opportunity to make representations and produce evidence to show that it had rights or legitimate interests in respect of the disputed domain name but did not take advantage of that opportunity. Consequently, the burden of production has not been discharged. The Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The Panel holds that the third element is present. Paragraph 4(b) of the Policy lists a number of circumstances which, if found by the Panel to be present, shall be evidence of the registration and use of the disputed domain name in bad faith. The fourth of those circumstances is as follows: “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.” The Respondent has used the disputed domain name to divert Internet traffic to the page that contains sponsored links and potential malware, which is annexed to the Complaint. A payment is likely generated every time one of those links is clicked. Such payments are “commercial gain”. The Panel has already found the disputed domain name to be confusingly similar to the Complainant’s trade mark. The circumstances of the case support a finding that the Respondent likely knew of and targeted the Complainant’s trademark when registering the disputed domain name. The elements of paragraph 4(b)(iv) of the Policy are satisfied. Furthermore, the Respondent’s apparent distribution of malware affirms a finding of bad faith use. See section 3.4 of the WIPO Overview 3.0. Accordingly, there is evidence of registration and use of the disputed domain name 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 Jane Lambert
Sole Panelist
Date: May 25, 2020
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