The Complainant is Teva Pharmaceutical Industries Limited, Israel, represented by SILKA AB, Sweden.
The Respondent is Whois Privacy, Private by Design, LLC, United States of America (“United States”) / Christopher j Fowler, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 9, 2020. On August 10, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 10, 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 August 18, 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 August 18, 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 August 31, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 20, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 21, 2020. The Center appointed Tuukka Airaksinen as the sole panelist in this matter on October 1, 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, established in 1901, is the one of the world’s largest producers of generic medicines. The Complainant is active in over 60 countries and employs approximately 45,000 persons around the world. The Complainant is the owner of the trademark TEVA, registered inter alia in the United States under number 1567918 since November 28, 1989. The Complainant has also operated its website at “www.tevapharm.com” since 1996. The disputed domain name was registered on August 3, 2020. The Complainant has provided evidence that the disputed domain name has been used in connection to a fraudulent email scheme. 5. Parties’ Contentions A. Complainant The Complainant’s trademark is included in the disputed domain name in its entirety and is clearly recognizable in it. The typo spelling of the term “pharm” in the disputed domain name does not in any way distinguish the disputed domain name from the Complainant’s trademark and does not prevent a finding of confusing similarity. Emails have been sent out from an email address associated with the disputed domain name, purporting to be sent from the Chief Financial Officer of the Complainant. The emails have encompassed information on how a certain payment was due and information on where the payment should be sent. The Respondent is impersonating the Complainant with the intention of attempting fraud on the Complainant’s employees. There is no right or legitimate interest in holding a domain name for the purpose of furtherance of a fraud. The Complainant has also not licensed or otherwise authorized the Respondent to register the disputed domain name and the Respondent is not commonly known by the disputed domain name. The Respondent has used a privacy shield in a manner that indicates bad faith. The Respondent was clearly aware of the Complainant when registering the disputed domain name, which is shown by the use of the fraudulent email address. There is no conceivable legitimate use for the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order to obtain the transfer of a domain name, a complainant must prove the three elements of paragraph 4(a) of the Policy, regardless of whether the respondent files a response to the complaint. The first element is that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The second element a complainant must prove is that the respondent has no rights or legitimate interests in respect of the domain name. The third element a complainant must establish is that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy requires that the Complainant establish that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark. The Complainant has shown that it is the owner of the trademark TEVA, registered in various jurisdictions all over the world. Hence, the Complainant does have rights to its trademark. The disputed domain name includes the Complainant’s trademark in its entirety, combined with the term “phamr”, which is merely a typo of the term “pharm”, a common abbreviation of the dictionary term “pharmaceutical”. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”): “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The nature of such additional term(s) may however bear on assessment of the second and third elements.” As the disputed domain name includes the Complainant’s trademark in its entirety and the Complainant’s trademark is clearly recognizable in the disputed domain name, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark and hence the first element of the Policy has been fulfilled. B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy requires that the Complainant establish that the Respondent has no rights or legitimate interests to the disputed domain name. It is widely accepted among UDRP panels that once a complainant has made a prima facie showing indicating the absence of the respondent’s rights or legitimate interests in a disputed domain name the burden of production shifts to the respondent to come forward with evidence of such rights or legitimate interests. If the respondent fails to do so, the complainant is deemed to have satisfied the second element of the Policy. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270, and section 2.1 of the WIPO Overview 3.0. The Complainant has credibly submitted that the Respondent is neither affiliated with the Complainant in any way nor has it been authorized by the Complainant to use and register the disputed domain name, that the Respondent has no prior rights or legitimate interests in the disputed domain name, and that the Respondent has not made and is not making a legitimate noncommercial or fair use of the disputed domain name and is not commonly known by the disputed domain name in accordance with paragraph 4(c)(ii) of the Policy. Moreover, the Panel finds that the nature of the disputed domain names carries a risk of implied affiliation with the Complainant’s trademark. See section 2.5.1 of the WIPO Overview 3.0. Accordingly, the Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. Considering the Panel’s findings below, the Panel finds that there are no other circumstances that provide the Respondent with any rights or legitimate interests in the disputed domain name. Therefore, the Panel finds that the second element of the Policy is fulfilled. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires that the Complainant establish that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy provides that the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: “(i) circumstances indicating that [the Respondent has] registered or has acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that the Complainant, for valuable consideration in excess of [the Respondent’s] documented out-of-pocket costs directly related to the domain name; or (ii) [the Respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the Respondent has] engaged in a pattern of such conduct; or (iii) [the Respondent has] registered the domain name primarily for the purpose of disrupting the business or competitor; or (iv) by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] 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 [the Respondent’s] website or location or of a product or service on [the Respondent’s] website or location.” Considering that the Complainant has been using its trademark since 1901 and that the disputed domain name has been used for illegal activity, namely a phishing attempt by sending fraudulent email communications in the name of the Complainant’s purported CFO, the Panel finds that the Respondent was aware of the Complainant when registering the disputed domain name. Hence, the disputed domain name was registered in bad faith. The disputed domain name does not resolve to an active website. However, this does not prevent a finding of bad faith in the circumstances of this case, see e.g., Accenture Global Services Limited v. Domain eRegistration,WIPO Case No. D2018-1994. As described above, the disputed domain name has been used for fraudulent purposes (i.e., sending fraudulent email communications impersonating an employee of the Complainant), and it is clear that the Respondent’s purpose has never been to put the disputed domain name into any legitimate use. Such fraudulent use of the disputed domain name is indicative of bad faith. See section 3.4 of the WIPO Overview 3.0. The Panel considers, on balance, that the disputed domain name has been registered and is being used in bad faith. Therefore, the Panel finds that the third element of the Policy is fulfilled. 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 Tuukka Airaksinen
Sole Panelist
Date: October 15, 2020
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