Walgreen Co. v. Amar Pachauri
Claim Number: FA1803001778017
Complainant is Walgreen Co. (“Complainant”), represented by Tamara A. Miller, Illinois, USA. Respondent is Amar Pachauri (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <walgrens.org> and <walgren.net> (‘the Domain Names’) registered with GoDaddy.com, LLC.
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 submitted a Complaint to the Forum electronically on March 20, 2018; the Forum received payment on March 20, 2018.
On March 21, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <walgrens.org> and <walgren.net> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 March 22, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 11, 2018 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@walgrens.org, postmaster@walgren.net. Also on March 22, 2018, 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 April 12, 2018, 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 names be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant has used the WALGREENS name since 1901. It owns registered trade marks for WALGREENS dating back to at least the 1970s in the United States and has registered the WALGREENS mark in India where the Respondent is based. The Complainant owns walgreens.com.
The Domain Names registered in 2017 are misspellings of the Complainant’s WALGREENS Mark combined with the gTLDs .org or .net. and are confusingly similar to said mark. They resolve to pages prominently displaying the Complainant’s mark in its well known logo in red script which link in turn to the Complainant’s website giving the impression of a connection with the Complainant when none exists.
This cannot be bona fide use or legitimate non commercial use. Complainant has not given any authorisation to the Respondent. Respondent is not commonly known by the Domain Names. Respondent does not have rights or a legitimate interest in the Domain Names.
The use of the red WALGREENS logo shows an intent to confuse Internet users that the Domain Names and the content attached to them are connected to the Complainant and constitute a pattern. The Domain Names have been registered and used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant has used the WALGREENS name since 1901. It owns registered trade marks for WALGREENS dating back to at least the 1970s in the United States and has registered the WALGREENS mark in India where the Respondent is based. The Complainant owns walgreens.com.
The Domain Names registered in 2017 resolve to pages showing the Complainant’s WALGREENS logo in its official red logo script which link to the Complainant’s web site.
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 and inferences set forth 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) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Identical or Confusingly Similar
The Domain Names consist of misspelled versions of the Complainant's WALGREENS mark (which has been registered in USA since at least the 1970s for pharmacy services services) and the gTLD .net or .org. The Panel agrees that misspellings such as omission of a letter or letters does not distinguish the Domain Names from the Complainant's WALGREENS trade mark pursuant to the Policy. See Twitch Interactive Inc. v Zhang qin, FA 1626511 (Forum Aug. 4, 2015).
The gTLD .com does not serve to distinguish the Domain Names from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (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 Names are confusingly similar for the purpose of the Policy to the mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised 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 Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 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).
It is clear from the evidence that the Respondent has used the pages attached to the Domain Names to link to pages showing the Complainant’s logo in its official red script form. The usage of the Complainants’ mark which have a significant reputation is not fair as the page attached to the Domain Names does not make it clear that there is no commercial connection with the Complainant. As such it cannot amount to the bona fide offering of goods and services or a legitimate commercial or fair use. The fact that it has links to the Complainant’s site does not make this bona fide use or a non commercial legitimate fair use. See Direct Line Ins. Pic v Low-cost-domain, FA 1337658 (Forum Sep. 8, 2010).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The use of the Complainant’s logo in its official red script form on the pages attached to the Domain Names shows actual knowledge by the Respondent of the Complainant and its business.
Further the Domain Names seek 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 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
Additionally the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to competing websites by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site under Policy 4(b)(iv). See Metro Life Ins Co. V Bonds, FA 873143 (Forum Feb. 16, 2007).
As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(iii) and 4(b)(iv) and there is no need to consider further grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <walgrens.org> and <walgren.net> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 15, 2018
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