The Complainant is CoverMyMeds LLC, United States of America (“United States”), represented internally.
The Respondent is 蒋黎 (Leed Johnny, Johnny), China.
2. The Domain Names and RegistrarThe disputed domain names
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 17, 2021. On August 17, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 19, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 23, 2021, 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 in English on August 28, 2021, and an amended Complaint in English on September 2, 2021.
On August 23, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the administrative proceeding. On August 26, 2021, the Complainant confirmed its request that English be the language of the administrative proceeding. The Respondent did not comment on the language of the administrative proceeding.
The Center verified that the Complaint together with the amendment to the Complaint and amended 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 in English and Chinese of the Complaint, and the proceedings commenced on September 6, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 26, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 29, 2021.
The Center appointed Francine Tan as the sole panelist in this matter on October 13, 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 BackgroundThe Complainant, CoverMyMeds LLC, states that it is a subsidiary of McKesson Corporation (“McKesson”) which is one of the oldest and largest healthcare companies in the United States. McKesson was founded in 1833, has over 76,000 employees, and provides a wide range of innovative healthcare distribution solutions to business and patients, including in the areas of pharmaceuticals, medicine and surgery, and specialty health. McKesson's headquarters are in Irving, Texas, and it maintains offices and facilities throughout the United States and worldwide.
The Complainant states that McKesson is ranked 7th on the FORTUNE 500, with more than USD 200 billion in annual revenue. McKesson delivers vital medicines, medical supplies, and healthcare information technology solutions. Its customers include 200,000 physicians, 26,000 retail pharmacies, 10,000 long-term care sites, 5,000 hospitals, 2,000 medical surgical manufacturers, 750 homecare agencies, 600 health care payors, and 450 pharmaceutical manufacturers.
Since around 2008, the Complainant has offered electronic prior authorization services, medication reimbursement programs and services administration, business networking referral services, healthcare utilization and review services, managed care services, and advertising and promotional services for the pharmaceutical and medical industry under the COVERMYMEDS trade mark.
The Complainant owns trade mark registrations for the COVERMYMEDS mark and other COVERMYMEDS-formative marks (collectively, the “COVERMYMEDS Marks”) including:
(i) United States Registration No. 3,806,358 for CoverMyMeds, registered on June 22, 2010;
(ii) United States Registration No. 6,298,287 for CoverMyMeds Specialty Pharmacy, registered on March 23, 2021.
In addition, the Complainant is the owner of a number of domain name registrations comprising the COVERMYMEDS Marks, such as
The disputed domain names
The disputed domain names are identical or confusingly similar to the Complainant’s COVERMYMEDS trade mark. They comprise misspellings of the Complainant’s COVERMYMEDS mark. In the disputed domain names
The Respondent has no rights or legitimate interests in the disputed domain names. The Respondent is not a licensee of the Complainant, nor has the Respondent been otherwise authorized by the Complainant to use the COVERMYMEDS Marks in a domain name or otherwise. The Respondent’s use of the disputed domain names, which resolved to parking pages displaying PPC links to various products, including those which compete with the Complainant’s pharmaceutical products, does not amount to a bona fide offering of goods or services. The Respondent is not commonly known by any of the disputed domain names and has not made any bona fide use of the disputed domain names so as to confer any reputation in the disputed domain names themselves, independent of the Complainant’s rights in the COVERMYMEDS Marks. The Respondent’s misleading and commercially-motivated use of the disputed domain names is neither a legitimate noncommercial nor fair use of the disputed domain names without intent for commercial gain to misleadingly divert consumers.
The disputed domain names were registered and are being used in bad faith. The Complainant asserts that the COVERMYMEDS trade mark has been in use since 2008, and that it has expended significant resources in developing and promoting its services under the COVERMEDS Marks. As a result of these efforts, the COVERMYMEDS Marks have acquired considered goodwill in the marketplace. Relevant consumers identify the Complainant as a source of such services bearing the COVERMYMEDS Marks, noting for example that primary Google search results refer to the Complainant. The Respondent must have had knowledge of the Complainant and its rights in the COVERMYMEDS Marks and specifically targeted the Complainant when registering the disputed domain names. The Respondent has registered at least 18 other domain names that infringe well-known or famous third-party trade marks which show a pattern of bad faith domain name registration. Examples of these other registrations are as follows:
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(collectively, the “other domain names”).
The Respondent has intentionally attempted to attract Internet users seeking the Complainant’s goods or services by capitalizing on the fact that users may make a typographical error when entering the Complainant’s domain name
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1. Preliminary Issue: Language of the ProceedingParagraph 11(a) of the Rules provides that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The language of the Registration Agreements for the disputed domain names is Chinese. The Complainant requested that the language of the proceeding be English, the reasons being that the circumstances show that the Respondent is familiar with the English language:
(i) the disputed domain names are composed of misspellings of English-language terms; and
(ii) at the time of filing the Complaint, the disputed domain names resolved to parking pages displaying PPC links, the contents of which are entirely in English.
On the other hand, the Complainant is based in the United States and its main operating language is English. The Complainant has no knowledge of the Chinese language and to require the Complainant to translate the Complaint and supporting annexes into Chinese would cause the Complainant to incur substantial additional costs and cause unwarranted delay.
The Respondent did not respond on issue of the language of the proceeding.
The Panel determines that it is appropriate for English to apply as the language of the proceeding. The Panel make its determination in the spirit of fairness and justice to the Parties, being mindful for the need to ensure that the proceeding takes place expeditiously and in a cost-effective manner. In this case, the Panel does not find anything to contradict what appears to be the case, that the Respondent is comfortable with and understands the English language. The circumstances mentioned by the Complainant sufficiently satisfy the Panel that the Respondent is likely to be conversant and/or familiar with the English language. The composition and language of the other domain names are an additional relevant consideration. Moreover, the Panel notes that the Respondent has chosen not to participate in this proceeding and that all of the Center’s communications with the Parties have been sent in both English and Chinese. In the absence of any objection by the Respondent, the Panel does not find it procedurally efficient to have the Complainant translate the Complaint and evidence into Chinese. There is no evidence that the Respondent would be prejudiced by a determination that English would be adopted as the language of the proceeding.
6.2. Substantive Issues A. Identical or Confusingly SimilarThe Complainant has established it has rights in the COVERMYMEDS Marks. The disputed domain names comprise misspellings of the Complainant’s COVERMYMEDS mark. The misspellings of the COVERMYMEDS mark do not prevent a finding of confusing similarity with the Complainant’s COVERMYMEDS trade mark. The gTLD “.com” is generally irrelevant for the purposes of assessment under the first element. The Panel agrees that the disputed domain names are confusingly similar to the Complainant’s COVERMYMEDS trade mark.
The Panel accordingly finds that the first element of paragraph 4(a) of the Policy has been satisfied.
B. Rights or Legitimate InterestsThe Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names. The Complainant’s first use and registrations of the COVERMYMEDS mark long predate the registration dates of the disputed domain names. The Complainant did not license or authorize the Respondent to use the COVERMYMEDS Marks as a trade mark or in a domain name. Neither is there evidence that the Respondent is commonly known by the name “cobermymeds”, “cocermymeds”, or “covermymefs”. The use of the disputed domain names which comprise misspellings of the Complainant’s COVERMYMEDS mark for the purpose of navigating Internet users to parking pages with PPC links that offer products which compete with the Complainant does not constitute a bona fide offering of goods or services, or a legitimate noncommerical or fair use of the disputed domain names.
The burden of production accordingly shifts to the Respondent to show that he has rights or legitimate interests in the disputed domain names. The Respondent failed to respond to or rebut the Complainant’s assertions in this proceeding. Accordingly, the Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain names.
The Panel finds that the second element of paragraph 4(a) of the Policy has been satisfied.
C. Registered and Used in Bad FaithThe Complainant has provided evidence that it has acquired reputation and goodwill through long-term and extensive use of its COVERMYMEDS Marks for many years. Subject to evidence to the contrary, the Panel is persuaded that the Respondent could not by pure coincidence and without prior knowledge of the Complainant and its COVERMYMEDS Marks have selected the disputed domain names without the Complainant and/or its COVERMYMEDS Marks in mind. The variations in the misspellings of the Complainant’s COVERMYMED mark and the substituted letters selected for this purpose are strong indicators of a deliberate attempt to mislead Internet users. The Panel is persuaded that the Respondent was well aware of the Complainant and its COVERMYMEDS Marks.
By using the disputed domain names, which comprise typographical errors of the Complaint’s COVERMYMEDS mark, to resolve to parking pages with competing PPC links, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites in bad faith, by creating a likelihood of confusion with the Complainant’s COVERMYMEDS mark.
Furthermore, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 3.1.2 states that:
“UDRP panels have held that establishing a pattern of bad faith conduct requires more than one, but as few as two instances of abusive domain name registration. This may include a scenario where a respondent, on separate occasions, has registered trademark-abusive domain names, even where directed at the same brand owner. A pattern of abuse has also been found where the respondent registers, simultaneously or otherwise, multiple trademark-abusive domain names corresponding to the distinct marks of individual brand owners.”
Against the backdrop of the registration of the other domain names, a majority of which comprise misspellings of various third-party distinctive trade marks, the Panel is persuaded that the circumstances presented by the Complainant demonstrate that the Respondent registered and is using the disputed domain names in bad faith.
The Panel therefore finds that the third element of paragraph 4(a) of the Policy has been satisfied.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names,
Francine Tan
Sole Panelist
Date: October 19, 2021