Complainant is H. Lundbeck A/S, Denmark, represented by Zacco Denmark A/S, Denmark.
Respondent is Super Privacy Service LTD c/o Dynadot, United States of America (“United States”), / Domain Administrator, China. 2. The Domain Name and Registrar
The Disputed Domain Name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 29, 2021. On June 29, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 30, 2021, 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 Complainant on June 30, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on June 30, 2021. 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 Respondent of the Complaint, and the proceedings commenced on July 2, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 22, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 26, 2021. The Center appointed Richard W. Page as the sole panelist in this matter on July 29, 2021. 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 H. Lundbeck A/S. was founded in 1915 and is now an international pharmaceutical company engaged in the research, development, production, marketing, and sale of pharmaceuticals across the world. Complainant’s products are targeted at the disease areas within psychiatry and neurology. Complainant is one of the world’s leading pharmaceutical companies working with brain disorders. In 2020, the company’s revenue was USD 2.84 billion. Today Complainant employs approximately 5,800 people worldwide. Complainant markets a number of different pharmaceutical registered trademakrs for the treatment of brain disorders, such as Rexulti (depression and schizophrenia), Brintellix (depression), Cipralex/Lexapro (depression) and Abilify Maintena (schizophrenia). Vyeptiis a prescription medicine that is used for the preventive treatment of migraines in adults. It was approved by the FDA on February 21, 2020 and was launched on April 6, 2020. The VYEPTI Mark is registered in almost 200 jurisdictions around the world. European Union Trademark No. 018179171 was registered on May 22, 2020. Also, United States Registration No. 6,102,605 was registeredon July 14, 2020 and United States Registration No. 6,302,334 was registered on March 23, 2021. Complainant filed an application for the trademark “VYEPTI TODAY” in Denmark on May 21, 2021. Respondent registered the Disputed Domain Name on May 25, 2021. Complainant also holds a number of domain name registrations that contain the VYEPTI Mark including Complainant contends that the Disputed Domain Name is confusingly similar to the VYEPTI Mark, in which Complainant holds rights. Complainant further contends that the Disputed Domain Name incorporates the VYEPTI Mark in its entirety with addition of the descriptive term “today” and the generic Top-Level Domain (“gTLD”) “.com”. Complaint further contends that the addition of a descriptive term does not prevent a finding of confusing similarity in a case like this since the trademark is recognizable within the Disputed Domain Name. Complaint further contends that it is an established and recognized principle under the UDRP that the presence of a gTLD designation is irrelevant in the analysis of confusing similarity. Complainant asserts that Respondent has no rights or legitimate interests in the Disputed Domain Name. Complainant further asserts that Respondent has not received any license or consent, express or implied, to use the VYEPTI Mark in domain names or in any other manner from Complainant, nor has Complainant acquiesced in any way to such use or application by Respondent. At no time did Respondent have authorization from Complainant to register the Disputed Domain Name. Complainant further asserts that Respondent did not use the Disputed Domain Name as a trademark, company name, business or trade name prior to the registration of the Disputed Domain Name, nor is Respondent otherwise commonly known by the Disputed Domain Name. Complainant further asserts that the Disputed Domain Name does not appear to be actively used. And consequently, it is evident that Respondent does not make a legitimate noncommercial or fair use of the Disputed Domain Name. Complainant alleges that the registration and use of the Disputed Domain Name was in bad faith. Complainant further alleges that the VYEPTI Mark is a coined word and distinctive per se. The VYEPTI Mark is registered in multiple jurisdictions around the world and it has been used intensively, in particular in United States, since the product was launched. Complainant further alleges that Respondent must have had positive knowledge as to the existence of the VYEPTI Mark at the time Respondent registered the Disputed Domain Name. Complainant further alleges Respondent’s bad faith registration of the Disputed Domain Name is supported by the fact that the Disputed Domain Name was registered immediately following Complainant’s filing of a trademark application in Denmark for the mark VYEPTI TODAY. Complainant cites section 3.8.2 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Complainant further alleges that the Disputed Domain Name is not being actively used at the time of filing the Complaint. However, as first stated in Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 (“Telstra”) and repeated in many subsequent decisions under the UDRP, inactivity by Respondent can amount to the Disputed Domain Name being used in bad faith. Complainant cites Section 3.3 of the WIPO Overview 3.0 which discusses the practice of “passive holding” or non-use of a domain name under circumstances which can support bad faith. Complainant states that the factors to be considered are (i) the degree of distinctiveness or reputation of the VYEPTI Mark, (ii) the failure of Respondent to submit a response or to provide any evidence of actual or contemplated good faith use, (iii) Respondent’s concealing its identity or use of false contact details, and (iv) the implausibility of any good faith use to which the Disputed Domain Name may be put. Complainant claims that the VYEPTI Mark is distinctive and has been used intensively and that it is inconceivable that Respondent will be able to use the Disputed Domain Name for any plausible purpose that would not be infringing of Complainant’s rights. Complainant further claims that Respondent is concealing its identity behind a privacy shield which is a further indication of 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 in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable.” Even though Respondent has failed to file a Response or to contest Complainant’s assertions, the Panel will review the evidence proffered by Complainant to verify that the essential elements of the claims are met. See section 4.3 of the WIPO Overview 3.0. Paragraph 4(a) of the Policy directs that Complainant must prove each of the following: (i) that the Disputed Domain Name registered by Respondent is identical or confusingly similar to the VYEPTI Mark in which Complainant has rights; and (ii) that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) that the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar As set out above, the VYEPTI Mark is registered in almost 200 jurisdictions around the world. Section 1.2.1 of the WIPO Overview 3.0 states that registration of a trademark is prima facie evidence of Complainant having enforceable rights in the VYEPTI Mark. Respondent has not contested Complainant’s rights in the VYEPTI Mark. Therefore, the Panel finds that Complainant has enforceable rights in the VYEPTI Mark for purposes of this proceeding. Complainant further contends that the Disputed Domain Name is confusingly similar to the trademark pursuant to paragraph 4(a)(i) of the Policy. Section 1.7 of the WIPO Overview 3.0 says that inclusion of the entire VYEPTI Mark in the Disputed Domain Name will be considered confusingly similar. Section 1.8 of the WIPO Overview 3.0 instructs that the addition of other terms (whether descriptive, geographical, pejorative, meaningless or otherwise) does not prevent a finding of confusing similarity. Section 1.11.1 of the WIPO Overview 3.0 instructs that gTLDs such as “.com” may be disregarded for purposes of assessing confusing similarity. The Panel finds that the entirety of the VYEPTI Mark is included within the Disputed Domain Name. Also, the addition of the descriptive word “today” does not prevent the Disputed Domain Name from being found to be confusingly similar to the VYEPTI Mark. The gTLD “.com” isdisregarded under the first element confusing similarity test. Therefore, the Panel finds that the Disputed Domain Name is confusingly similar with the VYEPTI Mark, pursuant to paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Complainant asserts that Respondent has no rights or legitimate interests in the Disputed Domain Name pursuant to paragraph 4(a)(ii) of the Policy. Section 2.1 of the WIPO Overview 3.0 states the consensus view of panels that once Complainant makes a prima facie case in respect of the lack of rights or legitimate interests of Respondent, Respondent carries the burden of demonstrating it has rights or legitimate interests in the Disputed Domain Name. Where Respondent fails to do so, Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. Paragraph 4(c) of the Policy allows three nonexclusive methods for the Panel to conclude that Respondent has rights or a legitimate interest in the Disputed Domain Name: (i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Disputed Domain Name or a name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services; or (ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Disputed Domain Name, even if you have acquired no trademark or service mark rights; or (iii) you [Respondent] are making a legitimate noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the VYEPTI Mark. Complainant asserts that Respondent has not received any license or consent, express or implied, to use the VYEPTI Mark in domain names or in any other manner from Complainant. At no time did Respondent have authorization from Complainant to register the Disputed Domain Name. Complainant further asserts that Respondent did not use the Disputed Domain Name as a trademark, company name, business or trade name prior to the registration of the Disputed Domain Name, nor is Respondent otherwise commonly known by the Disputed Domain Name. Complainant further asserts that the Disputed Domain Name does not appear to be actively used. And consequently, it is evident that Respondent does not make a legitimate noncommercial or fair use of the Disputed Domain Name. The Panel finds that Complainant has set forth a prima facie case and that Respondent has not contested Complainant’s assertions. Therefore, the Panel finds that Complainant has satisfied the elements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Complainant contends that Respondent registered and is using the Disputed Domain Name in bad faith in violation of paragraph 4(a)(iii) of the Policy. Paragraph 4(b) of the Policy sets forth four nonexclusive criteria for Complainant to show bad faith registration and use of the Disputed Domain Name: (i) circumstances indicating that you [Respondent] have registered or you have acquired the Disputed Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Name registration to Complainant who is the owner of the VYEPTI Mark or to a competitor of Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the Disputed Domain Name; or (ii) you [Respondent] have registered the Disputed Domain Name in order to prevent Complainant from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you [Respondent] have registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the Disputed Domain Name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with Complainant's VYEPTI Mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product. Complainant alleges that the VYEPTI Mark is a coined word and distinctive per se. The VYEPTI Mark is registered in multiple jurisdictions around the world and it has been used intensively, in particular in the United States, since the product was launched. Complainant further alleges that Respondent must have had positive knowledge as to the existence of the VYEPTI Mark at the time Respondent registered the Disputed Domain Name. Complainant further alleges Respondent’s bad faith registration of the Disputed Domain Name is supported by the fact that the Disputed Domain Name was registered immediately following Complainant’s filing of a trademark application in Denmark for the mark VYEPTI TODAY. (The Panel also notes several other trademark applications as set out above.) Complainant cites section 3.8.2 of WIPO Overview 3.0. Complainant further alleges that the Disputed Domain Name is not being actively used at the time of filing the Complaint. However, as first stated in Telstra, supra, and repeated in many subsequent decisions under the UDRP, inactivity by Respondent can amount to the Disputed Domain Name being used in bad faith. Complainant cites Section 3.3 of the WIPO Overview 3.0 which discusses the practice of “passive holding” or non-use of a domain name under circumstances which can support bad faith. Complainant states that the factors to be considered are (i) the degree of distinctiveness or reputation of the VYEPTI Mark, (ii) the failure of Respondent to submit a response or to provide any evidence of actual or contemplated good faith use, (iii) Respondent’s concealing its identity or use of false contact details, and (iv) the implausibility of any good faith use to which the Disputed Domain Name may be put. Complainant claims that the VYEPTI Mark is distinctive and had been used intensively and that it is inconceivable that Respondent will be able to use the Disputed Domain Name for any plausible purpose that would not be infringing of Complainant’s rights. The four criteria set forth in paragraph 4(b) of the Policy are nonexclusive. See, Telstra, supra. In addition to these criteria, other factors alone or in combination can support a finding of bad faith. The Panel finds that Respondent had actual or constructive knowledge of Complainant’s rights in the VYEPTI Mark, has not contested Complainant’s allegations of bad faith and that there appears to be no good faith use intended by Respondent for the Disputed Domain Name. Therefore, the Panel finds that Complainant has satisfied the elements of paragraph 4(a)(iii) of the Policy. 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, Richard W. Page
Sole Panelist
Date: August 12, 2021
Full & Egal Universal Law Academy