Novartis AG v. CHRIS TAITAGUE
Claim Number: FA1708001744264
Complainant is Novartis AG (“Complainant”), represented by Maury M. Tepper of Tepper & Eyster, PLLC, North Carolina, USA. Respondent is CHRIS TAITAGUE (“Respondent”), North Carolina, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sandozcareers.com>, registered with eNom, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 11, 2017; the Forum received payment on August 11, 2017.
On August 11, 2017, eNom, LLC confirmed by e-mail to the Forum that the <sandozcareers.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 5, 2017 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@sandozcareers.com. Also on August 14, 2017, 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 8, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a global pharmaceutical business manufacturing and distributing medications, vaccines and other medical products.
Complainant holds a registration for the SANDOZ service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,179,672, registered July 24, 2012.
Respondent registered the domain name <sandozcareers.com> on or about June 20, 2017.
The domain name is confusingly similar to Complainant’s SANDOZ mark.
Respondent has not been commonly known by the domain name.
Respondent has no license or other authorization to use the SANDOZ mark in a domain name.
Respondent is not affiliated with Complainant in any way.
Respondent has not made a bona fide offering of goods or services or a legitimate non-commercial or fair use of the domain name.
The domain name resolves to a parked webpage hosting click-through links to the websites of enterprises doing business in competition with that of Complainant.
Respondent does not have rights to or legitimate interests in the domain name.
The domain name attracts internet users to Respondent’s website for its commercial gain and creates a likelihood of confusion among them as to the possibility of Respondent’s affiliation with Complainant.
Respondent registered the domain name with actual knowledge of Complainant and its rights to the SANDOZ mark.
Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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:
ii. 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 by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the SANDOZ service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <sandozcareers.com> domain name is confusingly similar to Complainant’s SANDOZ mark. The domain name incorporates the mark in its entirety, adding only the generic term “careers,” which relates to an aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum January 21, 2016):
[W]here as here a disputed domain names contains Complainant’s entire trademark and differs only by the addition of a generic or descriptive phrase and top-level domain name, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.
To the same effect, see also Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum January 19, 2016).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <sandozcareers.com> domain name, that Respondent is not affiliated with Complainant in any way, and that Respondent has no license or other authorization to use the SANDOZ mark in a domain name. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Chris Taitague,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by disputed domain names, and so failed to show that it had rights to or legitimate interests in any of them as provided in Policy ¶ 4(c)(ii), where the relevant WHOIS information, as well as the other evidence in the record, gave no indication that that respondent was commonly known by the domain names, and where a UDRP complainant asserted that it had not authorized that respondent to register a domain name containing its mark).
We next observe that Complainant alleges, without objection from Respondent, that Respondent has not made a bona fide offering of goods or services or a legitimate non-commercial or fair use of the <sandozcareers.com> domain name, in that the domain name resolves to a parked webpage hosting click-through links to the websites of enterprises doing business in competition with that of Complainant. In the circumstances described in the Complaint, we may comfortably presume that Respondent seeks to profit financially from this employment of the domain name. This use of the domain name is therefore neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) so as to confirm in Respondent rights to or legitimate interests in the domain name as provided in either of those sections of the Policy. On the point, see Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015).
We take further note of Complainant’s contention, which, again, Respondent fails to deny, that Respondent uses an e-mail address associated with the disputed <sandozcareers.com> domain name to make false offers of employment to Internet users interested in obtaining a job with Complainant while also “phishing” for personal information from them. Phishing, a form of commercial fraud, is neither a bona fide offering of goods or services by which Respondent could claim rights to or legitimate interests in the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use by which it could lay claim to such rights or interests under Policy ¶ 4(c)(iii). See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum April 30, 2010):
The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the challenged <sandozcareers.com> domain name, which we have found to be confusingly similar to Complainant’s SANDOZ service mark, to attempt to profit from the confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain name and its resolving website. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See Red Hat, Inc. v. Haecke, FA 726010 (Forum July 24, 2006), where a respondent used a disputed domain name to operate a website featuring links to commercial websites doing business in competition with the business of a UDRP complainant, and from which that respondent presumably received referral fees, a Panel concluded that:
Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
To the same effect, see also: Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Forum March 21, 2006).
Likewise, Respondent’s employment of the <sandozcareers.com> domain name to facilitate a fraudulent phishing scheme demonstrates that it both registered and uses that domain name in bad faith. See SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA14009001581255 (Forum October 29, 2014):
Respondent’s use of the domain name’s e-mail suffix for fraudulent purposes illustrates Policy ¶ 4(a)(iii) bad faith.
To the same effect, see also: Emdeon Business Services, LLC v. HR Emdeon Careers, FA1507001629459 (Forum August 14, 2015).
Finally, under this head of the Policy, it is plain from the record that Respondent knew of Complainant and its rights in the SANDOZ mark when it registered the <sandozcareers.com> domain name. This further demonstrates Respondent’s bad faith in registering the domain name. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014), in which a panel found bad faith registration of a domain name where evidence showed that a respondent knew of a UDRP complainant and its rights in a mark employed in a domain name “through the name used for the domain and the use made of it.”).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <sandozcareers.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: September 11, 2017
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