Complainant is Boehringer Ingelheim International GMBH, Germany, represented by Nameshield, France.
Respondent is JH Kang, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 3, 2020. On January 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 6, 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 Complainant on January 8, 2020, providing the registrant and contact information disclosed by the Registrar along with other details, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on January 9, 2020. The Center verified that the Complaint, together with the 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 Respondent of the Complaint, and the proceedings commenced on January 13, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 2, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 3, 2020. The Center appointed Debra J. Stanek as the sole panelist in this matter on February 20, 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 Complainant is a group of pharmaceutical companies and owns International Trademark Registration No. 935517, registered August 3, 2007, for the mark TRAJENTA, for “pharmaceutical preparations,” which is used in connection with treatment of Type 2 diabetes. Complainant also owns the domain name About December 3, 2019, Respondent registered Complainant is one of the top 20 pharmaceutical companies worldwide. Complainant owns the mark TRAJENTA, which has been registered since 2007 (International Trademark Reg. No. 935517). The mark is used in connection with a pharmaceutical treatment for Type 2 diabetes. The disputed domain name Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not identified in the WhoIs database by the disputed domain name. Respondent is not affiliated with and has not been authorized or licensed by Complainant to use Complainant’s TRAJENTA mark or to register the disputed domain name. Complainant does not carry out any activity for, or have any business with, Respondent. Respondent’s use of the disputed domain name is in connection with a parking page with commercial links relating to Complainant’s TRAJENTA mark. 3. Registered and Used in Bad Faith Respondent registered and is using the disputed domain name in bad faith. By including Complainant’s TRAJENTA mark in a misspelled form in the disputed domain name, Respondent is engaged in typosquatting. Respondent is attempting to commercially benefit from the confusing similarity between the disputed domain name and Complainant’s mark. By using the disputed domain name with a parking page that features click-through advertisements that redirect users to pay-per-clicks links, Respondent is attempting to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name. Respondent had actual knowledge of Complainant’s mark. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings To prevail, a complainant must prove, as to the domain name at issue, that: (a) it is identical or confusingly similar to a mark in which the complainant has rights, (b) respondent has no rights or legitimate interests in respect to it, and (c) it has been registered and is being used in bad faith. Policy, paragraph 4(a). The Policy sets out examples of circumstances that may evidence a respondent’s rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as circumstances that may evidence a respondent’s bad faith registration and use, see Policy, paragraph 4(b). A respondent’s failure to respond to a complaint does not automatically result in a finding for the complainant. A complainant continues to have the burden of establishing each element. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.3. The Panel may, however, draw such inferences from Respondent’s default as appropriate. See Rules, paragraph 14(b). A. Identical or Confusingly Similar Complainant has established its rights in the mark TRAJENTA through the evidence of its International Trademark Registration No. 935517. The disputed domain name differs from Complainant’s mark by the addition of the letter “d” after the first syllable: “tradjenta”. Complainant concedes that the disputed domain name is not identical to its mark but maintains that the differences are not sufficient to differentiate it from the TRAJENTA mark and that it is, therefore, confusingly similar. The Panel agrees. A side-by-side comparison (disregarding the top-level domain) shows that the mark is plainly recognizable within the disputed domain name despite the additional letter. This conclusion is further supported by the fact that the pronunciation of Complainant’s mark and the disputed domain name are very similar, if not identical. See WIPO Overview 3.0, section 1.7 (test typically involves comparison to assess whether the textual elements of the mark are “recognizable within the disputed domain name” and may involve “a more holistic aural or phonetic comparison”). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights. B. Rights or Legitimate Interests The Panel shares the consensus view that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing, under Paragraph 4(c) of the Policy. See WIPO Overview 3.0, section 2.1(once complainant makes a prima facie case, the burden of production shifts to respondent). Respondent has not come forward with any evidence demonstrating rights or legitimate interests in the disputed domain name. For the following reasons, the Panel finds that Complainant has made a prima facie showing under this element. Use of a domain name to host a parked page that includes pay-per-click links may be consistent with establishing rights and legitimate interests. However, where, as here, the site features links that are connected with and capitalize on Complainant’s mark, the Panel finds that Respondent’s use is not in connection with a bona fide offering. See WIPO Overview 3.0, section 2.9. Further, it does not appear that Respondent is commonly known by the disputed domain name – the WhoIs record appears to identify an individual named “JH Kang”. Nor does it appear that use of the disputed domain name is noncommercial or otherwise a fair use. As noted above, Respondent has not rebutted Complainant’s prima facie showing. The Panel concludes that Complainant has established that Respondent lacks any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Complainant must establish that the disputed domain name was registered and is being used in bad faith. Complainant’s rights in its TRAJENTA mark predate registration of the disputed domain name by more than a decade. Given the similarity between the disputed domain name and Complainant’s mark, it seems most probable that Respondent was aware of Complainant and its mark and registered the disputed domain name with them in mind. In light of these facts and the manner in which the disputed domain name is used, and the adverse inferences that arise from Respondent’s failure to respond to the Complaint, the Panel finds that Complainant has established that Respondent has registered and is using the disputed domain name in bad faith. 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 Debra J. Stanek
Sole Panelist
Date: March 5, 2020
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