CVS Pharmacy, Inc. v. Alexander Shedrin
Claim Number: FA1811001816288
Complainant is CVS Pharmacy, Inc. (“Complainant”), represented by Sarah J Schneider of Sheridan Ross P.C., Colorado, USA. Respondent is Alexander Shedrin (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cvsgolf.com>, registered with NameSilo, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 13, 2018; the Forum received payment on November 13, 2018.
On November 14, 2018, NameSilo, LLC confirmed by e-mail to the Forum that the <cvsgolf.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 November 15, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 5, 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@cvsgolf.com. Also on November 15, 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. Respondent did however send an e-mail to the Forum, see below.
On December 7, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Complainant states that it uses the CVS mark in connection with its retail drug stores and pharmacies, as well as its golf tournament. Complainant has rights in the CVS mark based upon its registration of the mark in the United in 1971.
Complainant alleges that the disputed domain name is confusingly similar to its mark because it includes the CVS mark in the domain name, adds the generic/descriptive term “golf,” and adds a “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to divert users to illegal online pharmacies which may phish for users’ personal information. Furthermore, Respondent attempts to pass off as Complainant and operates a pay-per-click webpage. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name’s website, which diverts users to competing illegal online pharmacies. Additionally, Respondent attempts to pass off as Complainant and phish for Internet users’ personal and financial information. Furthermore, Respondent had actual knowledge of Complainant’s rights in the CVS mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its e-mail to the Forum, Respondent states: “The domain <cvsgolf.com> was registered by me for my project and is used without violations and within the law. I consider your claim unreasonable.”
Complainant has rights in the mark CVS dating back to 1971. The mark is used in connection with retail drug stores and pharmacies, as well as a golf tournament.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that contains links to products and services that purport to compete with those of Complainant, specifically, to illegal online pharmacies.
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.”).
The disputed domain name is confusingly similar to Complainant’s mark because it includes the CVS mark plus the generic/descriptive term “golf” and a gTLD. The addition of a generic/descriptive term and a gTLD to a mark is typically insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 19, 2016) (concluding that the addition of a generic term and top level domain to a trademark is inconsequential under a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds that the <cvsgolf.com> domain name is confusingly similar to Complainant’s CVS mark under Policy ¶ 4(a)(i).
Respondent is not authorized or permitted to use Complainant’s CVS mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, relevant WHOIS information may be used to identify respondent per Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS of record identifies Respondent as “Alexander Shedrin,” and no information in the record shows that Respondent was commonly known by the disputed domain. Accordingly, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii).
Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain to divert users for financial gain. Specifically, Complainant provides screen shots of the resolving website showing that it contains links to third-party websites that purport to offer products that compete with those of Complainant. Use of a disputed domain name to divert Internet users to a website featuring competing products may not be considered a bona fide offering or a legitimate use under Policy ¶¶ 4(c)(i) or (iii). See Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant). Therefore, the Panel finds that Respondent fails to use the disputed domain in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Further, Respondent uses the disputed domain in connection with illegal activity. Specifically, the resolving website contains links to illegal online pharmacies, which offer illegal prescription drugs and may defraud users for their personal and financial information. Use of a disputed domain in connection with illegal activity is not bona fide offering or a legitimate use under Policy ¶¶ 4(c)(i) or (iii). See Nycomed Danmark ApS v. Diaz, D2006-0779 (WIPO Aug. 15, 2006) (concluding that the respondent’s use of a disputed domain name to operate a website promoting an illegal food supplement was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”). Therefore, the Panel finds that Respondent uses the disputed domain in connection with illegal activity, and thus again fails to use the disputed domain for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
For all these reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent redirects users to competing online pharmacies, and it commercially benefits from this use because Respondent likely receives click-through fees. Use of a disputed domain name to divert users to a competing website may evince bad faith under Policy ¶¶ 4(b)(iii) and (iv). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name to divert users for commercial gain, which constitutes bad faith under Policy ¶¶ 4(b)(iii) and/or (iv).
Further, also as already noted, Respondent uses the disputed domain in connection with illegal activity, in particular illegally selling pharmaceutical products. Use of a disputed domain in connection with illegal activity may evince bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin, FA 1502001605239 (Forum Mar. 22, 2015) (finding that use of a disputed domain name to aid illegal activities under Complainant’s trademark suggests Respondent’s bad faith); see also Orphan Medical, Inc. v. Carlos Soto c/o Paradise Digital, LLC, FA 575658 (Forum Nov. 23, 2005) (finding that where the domain name resolved to a website that directed consumers to third party loan providers and third party providers of controlled substances, Respondent’s use of Complainant’s mark constituted bad faith use and registration.). Therefore, the Panel finds that Respondent’s use of the disputed domain name in connection with illegal activity constitutes bad faith registration and use under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cvsgolf.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 7, 2018
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