Boehringer Ingelheim Pharma GmbH & Co.KG v. Contract Dpt
Claim Number: FA1805001786866
Complainant is Boehringer Ingelheim Pharma GmbH & Co.KG ("Complainant"), represented by Enora Millocheau of Nameshield, France. Respondent is Contract Dpt ("Respondent"), Indiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <boehringer-lngelheim.us>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 16, 2018; the Forum received payment on May 16, 2018.
On May 16, 2018, NameCheap, Inc. confirmed by email to the Forum that the <boehringer-lngelheim.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with in accordance with the U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").
On May 21, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 11, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@boehringer-lngelheim.us. Also on May 21, 2018, the Written Notice of the Complaint, notifying Respondent of the email 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 June 12, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 the usTLD Dispute Resolution Policy ("Rules"). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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
Complainant is a German pharmaceutical company founded in 1885 by Albert Boehringer in Ingelheim am Rhein, Germany. Complainant has about 140 affiliated companies and about 46,000 employees worldwide, with sales of about €14.1 billion. Complainant states that it uses the mark BOEHRINGER INGELHEIM in connection with this business. Complainant owns trademark registrations for various forms of the mark, including a U.S. registration for BOEHRINGER-INGELHEIM issued in 1957.
Respondent registered the disputed domain name <boehringer-lngelheim.us> in May 2018. Complainant characterizes the domain name as an instance of "typosquatting," noting that it differs from Complainant's BOEHRINGER INGELHEIM mark only in substituting a letter "L" for "I" (a change that is difficult to see when the domain name is rendered in lower case letter) and adding a hyphen and the ".us" top-level domain. The domain name resolves to a registrar parking page consisting of commercial links related to Complainant. Complainant states that it is not affiliated with Respondent and has not authorized Respondent to use its marks.
Complainant contends on the above grounds that the disputed domain name <boehringer-lngelheim.us> is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in the domain name; and that the domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered or is being used 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:
(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 or is being used in bad faith.
Given the similarity between the usTLD Policy and other domain name dispute resolution policies, including ICANN's Uniform Domain Name Dispute Resolution Policy ("UDRP"), the Panel will draw upon decisions rendered under such other policies 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 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.").
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name corresponds to Complainant's well-known registered mark, but for a barely visible typographical error, and its sole apparent use has been in connection with a website comprised of sponsored advertising links relating to Complainant. The Panel notes that this website appears to be a default parking page generated by the registrar, indicating that Respondent may not have made any active use of the disputed domain name. See, e.g., Toronto-Dominion Bank v. Anthony Cinelli, FA 1716316 (Forum Mar. 7, 2017) (drawing such an inference under similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
The disputed domain name corresponds to Complainant's well-known mark, but for a typographical substitution obviously intended to confuse Internet users; and it is being used to display sponsored advertising links relating to Complainant. Under the circumstances, the Panel infers that Respondent registered and is using the domain name with the intent to profit from confusion with Complainant's mark. See, e.g., Toronto-Dominion Bank v. Anthony Cinelli, supra (finding bad faith registration and use under similar circumstances). The Panel finds that the disputed domain name was registered or is being used in bad faith.
Having considered the three elements required under the Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <boehringer-lngelheim.us> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 19, 2018
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