AbbVie Inc. v. stone Row
Claim Number: FA1908001858799
Complainant is AbbVie Inc. (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is stone Row (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <abbvie.us.com> (‘the Domain Name’), registered with Hosting Concepts B.V. d/b/a Openprovider.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant participated in the mandatory CentralNic Mediation, and the mediation process was terminated on (date not specified).
Complainant submitted a Complaint to the Forum electronically on August 23, 2019; the Forum received payment on August 23, 2019.
On August 27, 2019, Hosting Concepts B.V. d/b/a Openprovider confirmed by e-mail to the Forum that the <abbvie.us.com> domain name is registered with Hosting Concepts B.V. d/b/a Openprovider and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Openprovider has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Openprovider registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with CentralNic Dispute Resolution Policy (the “CDRP Policy”).
On August 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 18, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@abbvie.us.com. Also on August 29, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 19, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules to the CDRP Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the CDRP Policy, CDRP Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the ABBVIE mark registered, inter alia, in the USA for medical services and pharmaceutical preparations with first use recorded as 2013.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s mark adding only the ccTLD “.us” and the gTLD “.com” which do not prevent such confusing similarity.
The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it or authorized by the Complainant.
The Domain Name does not resolve to a web site but has been used in a fraudulent approach to the Complainant’s law firm attempting to procure copies of invoices. This is not a bona fide offering of goods or services or legitimate noncommercial or fair use. It is registration and use in bad faith and shows actual knowledge of the Complainant and its business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the ABBVIE mark registered, inter alia, in the USA for medical services and pharmaceutical preparations with first use recorded as 2013.
The Domain Name registered in 2019 has been used in a phishing attempt.
Paragraph 15(a) of the Rules instructs this Panel to "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."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The CDRP also requires that Complainant have participated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CDRP Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical and/or Confusingly Similar
The Domain Name in this Complaint combines the Complainant’s ABBVIE mark (registered in the USA for goods and services relating to medicine with first use recorded as 2013), the ccTLD “.us" and the gTLD “.org.”
The ccTLD “.us” and the gTLD “.com” do not serve to distinguish the Domain Name from the ABBVIE mark, which is the distinctive component of the Domain Name. See Dansko, LLC v. zhang wu, FA 1757745 (Forum Dec. 12, 2017) (finding the <danskoshoes.us.com> domain name to be confusingly similar to the DANSKO mark under Policy ¶ 4(a)(i), despite the addition of the “.us” ccTLD and the “.com” gTLD).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name.
The Domain Name has been used in a fraudulent phishing attempt using the ABBVIE name. This is deceptive and confusing and amounts to passing off. As such, it cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use’.).
As such, the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Impersonating a complainant by use of a complainant’s mark in a fraudulent phishing attempt is disruptive and evinces bad faith registration and use. See Microsoft Corporation v. Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy ¶ 4(b)(iii).).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶ 4(b)(iii).
Having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <abbvie.us.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: September 19, 2019
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page