AbbVie, Inc. v. Allergan AR
Claim Number: FA2208002008197
Complainant is AbbVie, Inc. (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas. Respondent is Allergan AR (“Respondent”), US.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <abbvle.net>, (‘the Domain Name’) registered with Google LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
<<Dawn Osborne>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 12, 2022; the Forum received payment on August 12, 2022.
On August 12, 2022, Google LLC confirmed by e-mail to the Forum that the <abbvle.net> Domain Name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 15, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 6, 2022 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@abbvle.net. Also on August 15, 2022, 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 12, 2022 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 for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN 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 is the owner of the ABBVIE mark, registered, inter alia, in the United States for medical services with first use recorded as 2013. It is well known.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s trade mark substituting a letter ‘l’ for the letter ‘i’ and adding the gTLD .net none of which prevents the said confusing similarity.
The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant. Causing confusion by typosquatting is an indication of a lack of rights and legitimate interests.
The Domain Name has not been used, so there has been no bona fide offering of goods or services or legitimate noncommercial or fair use. The Domain Name has been set up for e mail which could be used to deceive.
Passive holding of a domain name containing a sign confusingly similar to a famous mark disrupts the Complainant’s business and is opportunistic registration and use in bad faith. Typosquatting and causing confusion by use of the Domain Name is registration and use in bad faith. The Respondent has falsely used the name ‘Allergan’ a company associated with the Complainant in the WhoIs database.>>
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 United States for medical services with first use recorded as 2013. It is well known.
The Domain Name registered in 2022 has not been used.>>
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.
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”).
<<The Domain Name consist of a sign confusingly similar to the Complainant's ABBVIE mark (which is registered, inter alia, in USA for medical services with first use recorded as 2013), substituting a letter ‘l’ for the letter ‘i’ and adding the gTLD .net.
The Panel agrees that visually similar misspellings of a Complainant’s mark in a domain name do not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy. See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, “Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”). As such the substitution of the letter ‘i’ with ‘l’ does not prevent the Domain Name being confusingly similar to the Complainant’s trade mark which is still recognizable in the Domain Name.
The gTLD .net does not serve to distinguish a Domain Name from a Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Nat Arb Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.>>
Rights or Legitimate Interests
<<The Complainant has not authorized the use of a sign confusingly similar to its mark. There is no evidence to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
There has been no use of the Domain Name. See Hewlett-Packard Co. v Shemesh, FA 434145 (FORUM April 20, 2005)(Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy 4 ( c ) (i). )
Typosquatting is also an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015).
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing a sign confusingly similar to the Complainant’s mark which is recognised for medical services.
As such the Panellist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.>>
Registration and Use in Bad Faith
<<The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Nat. Arb. Forum June 23, 2003) Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inference [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trade mark of another. Passive holding of a domain name containing a mark with a reputation can be bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
The Respondent has also given a false name in the contact details of the WhoIS database which is also an indication of bad faith.
As such, the Panel holds 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.>>
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <abbvle.net> domain name be TRANSFERRED from Respondent to Complainant.
<<Dawn Osborne>>, Panelist
Dated: <<September 12, 2022>>
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