ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Teva Pharmaceutical Industries Ltd. v. YangZhiChao Case No. D2023-0476 1. The Parties The Complainant is Teva Pharmaceutical Industries Ltd., Israel, represented by SILKA AB, Sweden. The Respondent is YangZhiChao, China. 2. The Domain Names and Registrar The disputed domain names , , and are registered with 22net, Inc. (the "Registrar"). 3. Procedural History The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 1, 2023. On February 2, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On February 3, 2023, 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 February 3, 2023, 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 February 9, 2023. On February 3, 2023, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on February 8, 2023. The Respondent did not comment on the language of the proceeding. 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 in English and Chinese of the Complaint, and the proceedings commenced on February 10, 2023. In accordance with page 2 the Rules, paragraph 5, the due date for Response was March 2, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 3, 2023. The Center appointed Douglas Clark as the sole panelist in this matter on March 10, 2023. 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 a global pharmaceutical company established in 1935 and produces generic medicines and products. Among the pharmaceutical products sold by the Complainant is "Copaxone", which is a prescription medicine for treatment of relapsing forms of multiple sclerosis. The Complainant owns multiple trade mark registrations for COPAXONE, including the following: Trade Mark Registration Number Registration Date Class(es) Jurisdiction COPAXONE 002183986 June 17, 2002 5 European Union COPAXONE 1816603 January 18, 1994 5 United States of America COPAXONE 654/1995 June 29, 1995 5 Iceland COPAXONE TMA483793 October 8, 1997 5 Canada COPAXONE 592141 June 3, 1994 5 Australia COPAXONE 817027777 June 7, 1994 5 and 35 Brazil COPAXONE 802171 December 28, 1995 5 China COPAXONE 35793195 September 14, 2019 3 China The Respondent is an individual based in China. The Respondent was also the registrant of a number of domain names that incorporate the trade marks of others and which have been ordered to be transferred by the relevant panel such as: Wolfspeed, Inc. v. YangZhiChao, WIPO Case No. D2022-3989; Hexarmor, Limited Partnership (previously known as Performance Fabrics, Inc. dba HexArmor) v. YangZhiChao, WIPO Case No. D2022-3243; and Alfa Laval Corporate AB v. YangZhiChao, WIPO Case No. D2022-2316. The disputed domain names , , and were registered on September 15, 2022. At the date of this Complaint, the disputed domain names resolved to webpages containing pay-per-click links to third party websites. 5. Parties' Contentions A. Complainant The Complainant contends that: (a) The disputed domain names are confusingly similar to its trade mark. The disputed domain names wholly incorporate the Complainant's COPAXONE trade mark without the letter "x" in relation to , without the letter "o" in relation to , and without the letter "a" in relation to . The generic Top-Level Domain ("gTLD") ".com" in the disputed domain names does not page 3 eliminate the overall notion that the designations are connected to the trade mark and the likelihood of confusion that the disputed domain names and the trade mark are associated; (b) The Respondent has no rights or legitimate interests in the disputed domain names. The Respondent is not affiliated with the Complainant in any way and the Complainant has never granted any authorisation or license to use the Complainant's trade mark. The Respondent is not commonly known by the disputed domain names, and has not made a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain names. The Respondent appears to be using the websites under the disputed domain names for the purpose of generating pay-per-click revenues; and (c) The disputed domain names were registered and is being used in bad faith. The mere fact that the Respondent has registered multiple domain names incorporating a mark with a distinctive name gives rise to an inference of bad faith. Based on the use of the disputed domain names, the Respondent registered and is using the disputed domain names to attract Internet users for commercial gain, creating a likelihood of confusion with the Complainant's trade mark. The Complainant requests the transfer of the disputed domain names. B. Respondent The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1 Preliminary Issues - Language of the Proceeding According to paragraph 11(a) of the Rules, 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. In this case, the language of the Registration Agreement for the disputed domain names are in Chinese. Based on the given evidence, there is no agreement between the Complainant and the Respondent regarding the language of the proceeding. The Respondent did not respond as to the language of the proceeding. The Complainant has filed its Complaint in English and has requested that English be the language for the proceeding under the following grounds: a) the disputed domain names are in Roman characters and not in Chinese script; b) the disputed domain names resolve to websites with pay-per-click links that include English; and c) in order to proceed in Chinese, the Complainant would have to retain specialised translation services at a cost likely to be higher than the overall costs of the complaint. In accordance with paragraph 11(a) of the Rules, the Panel hereby determines that the language of the proceeding shall be in English after considering the following circumstances: - the Center has notified the Respondent of the proceeding in both English and Chinese; - the Respondent has not commented on the language of the proceeding; - the websites under the disputed domain names are in English; and - an order for the translation of the Complaint and other supporting documents will result in significant expenses for the Complainant and a delay in the proceeding. page 4 Further, this Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008-1191, that a respondent's failure to respond to a preliminary determination by the Center as to the language of the proceeding "should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint". 6.2 Preliminary Issues - Multiple Domain Names The Panel notes that the present Complaint has consolidated multiple domain name disputes. At the time of filing, the Complainant was not aware who the registrant of each disputed domain name was. This was provided by the Registrar after the Complaint was filed. According to paragraph 10(e) of the Rules, the Panel has the power to consolidate multiple domain name disputes. Paragraph 3(c) of the Rules also provides that a complaint may relate to more than one domain name, provided that the domain names are arguably registered by the same domain-name holder. As the registrant for the disputed domain names is the Respondent, the Panel accepts the Complainant's application to consolidate the disputed domain names in the Complaint. 6.3 Substantive Issues The Complainant must satisfy all three elements of paragraph 4(a) of the Policy in order to succeed in its action: (i) the disputed domain names are identical or confusingly similar to a trade mark in which the Complainant has rights to; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) the disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the disputed domain names , , and are confusingly similar to the Complainant's trade mark. The disputed domain names incorporate the COPAXONE trade mark and without the letter "x" in relation to , without the letter "o" in relation to , and without the letter "a" in relation to . All the disputed domain names are accompanied by the gTLD ".com". The omission of these letters does not preclude a finding of confusing similarity. The gTLD is generally disregarded when considering the first element. (See section 11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0")) The Complainant has therefore satisfied the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests The Respondent has not asserted any rights or legitimate interests in relation to the disputed domain names. Section 2.1 of the WIPO Overview 3.0 provides: "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." page 5 The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests, which has not been rebutted by the Respondent. Given that the disputed domain names reflect typographical variations of the Complainant's COPAXONE trade mark, and resolve to websites consisting of pay-per-click links referencing the COPAXONE trade mark without alteration, the Respondent cannot be said to be using the disputed domain name in connection with a bona fide offering, but rather seeks to mislead unsuspecting Internet users for the Respondent's commercial gain. Accordingly, the Respondent has no rights or legitimate interests in regard to the disputed domain names. The second element of paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith Based on the given evidence, the disputed domain names were registered and are being used in bad faith. The disputed domain names were registered long after the Complainant has registered the COPAXONE trade mark and the use of typographical variations of the Complainant's COPAXONE trade mark cannot be a coincidence. The COPAXONE trade mark is used by the Complainant to conduct its business and the Complainant has used the trade mark for over 28 years. The Respondent has also registered multiple domain names consisting of various misspellings of the Complainant's COPAXONE trade mark. The Panel is satisfied that the Respondent was aware of the Complainant and its COPAXONE trade mark when he or she registered the disputed domain names. The Respondent has registered the disputed domain names to attract Internet users to the website for commercial gain in accordance with paragraph 4(b)(iv) of the Policy. The disputed domain names direct Internet users to a parked webpage showing pay-per-click links to third party websites. As mentioned above, the Respondent is also a serial cybersquatter engaged in a series of trade mark infringing domain name registrations. For the above reasons, the Panel finds that the disputed domain names were registered and are being used in bad faith. The Complainant has therefore satisfied the third element under paragraph 4(a) 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 names, , , and , be transferred to the Complainant. /Douglas Clark/ Douglas Clark Sole Panelist Date: March 23, 2023
Full & Egal Universal Law Academy