The Complainant is TEVA Pharmaceuticals International GmbH, Switzerland, represented by SILKA AB, Sweden.
The Respondent is Domains By Proxy, LLC, United States of America (“United States”) / Carolina Rodrigues, Fundacion Comercio Electronico, Panama.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 4, 2021. On December 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 7, 2021 and December 10, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 13, 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 on December 13, 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 the Respondent of the Complaint, and the proceedings commenced on December 14, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 3, 2022. The Respondent did not submit any
response. Accordingly, the Center notified the Respondent’s default on January 5, 2021.
The Center appointed Ian Lowe as the sole panelist in this matter on January 12, 2022. 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 was founded in 1935 and has its headquarters in Israel. It is one of the world’s largest generic medicines producer, with a wide range of generic products in almost all therapeutic areas. AJOVY is the Complainant’s brand name for the drug fremanezumab used in particular for treating patients suffering from migraine. The Complainant has used the brand name AJOVY in connection with the development and sale of its generic medicine since 2016.
The Complainant is the proprietor of many trademark registrations in respect of the mark AJOVY including United States trademark number 87237174 AJOVY registered on December 18, 2018 and European Union Trade Mark number 16411852 AJOVY registered on November 5, 2018.
The Domain Name was registered on October 12, 2021. It resolves to a website access to which is blocked by software products such as Windows Defender, Norton and AVG because they report that the website is infected with malicious code. The Respondent Carolina Rodrigues has been the unsuccessful respondent in a number of complaints under the UDRP.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the Domain Name is confusingly similar to its AJOVY trademark, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsFor this Complaint to succeed in relation to the Domain Name the Complainant must prove that:
(i) the Domain Name is confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Complainant has uncontested rights in its AJOVY trademark, both by virtue of its many trademark registrations and as a result of its widespread use of the mark over a number of years. Ignoring the generic Top-Level Domain (“gTLD”) “.com”, the Domain Name comprises the entirety of the Complainant’s AJOVY trademark together with the word “drugs”. In the view of the Panel, the addition of this dictionary word does not prevent a finding of confusing similarity between the Domain Name and the Complainant’s mark. Accordingly, the Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsThe Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in respect of the Domain Name. The Domain Name is not being used for an active website but to resolve to a website apparently primed to distribute malware. In the Panel’s view, the registration of a domain name comprising “ajovy” and “drugs” could not conceivably be used by the Respondent for any legitimate purpose and there could be no possible justification for the Respondent having registered the Domain Name. It could only have been registered to deceive Internet users into believing that it had been registered by or operated on behalf of the Complainant and for purposes likely associated with phishing or other improper activities.
The Respondent has chosen not to respond to the Complaint to explain its registration or use of the Domain Name, or to take any other steps to counter the prima facie case established by the Complainant. In the circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad FaithIn light of the nature of the Domain Name, there is no doubt that the Respondent had the Complainant and its rights in the AJOVY mark in mind when it registered the Domain Name. As set out above, the only possible inference is that the Respondent registered the Domain Name for commercial gain with a view to taking unfair advantage of the Complainant’s rights in the mark and to confuse Internet users into believing that the Domain Name was being operated by or authorized by the Complainant.
The Panel considers that the Respondent has intentionally attempted to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s mark in order to install malware onto the user computer with a view to profit-making. As the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) points out at section 3.1.4 “such behaviour is manifestly considered evidence of bad faith”.
Accordingly, the Panel finds that the Domain Name has been registered and is being used in bad faith.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name
Ian Lowe
Sole Panelist
Date: January 26, 2022