Complainant is Anda Inc, United States of America (“United States”), represented by SILKA Law AB, Sweden.
Respondent is Registration Private, Domains By Proxy, LLC, United States / Name Redacted1.
The disputed domain name <qndanet.com> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 13, 2019. On June 14, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 14, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on June 17, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on June 18, 2019.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on June 20, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 10, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 11, 2019.
The Center appointed John C. McElwaine as the sole panelist in this matter on July 17, 2019. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainant, Anda Inc, was established in 1992 and is part of Teva Pharmaceuticals. Complainant distributes generic, brand, specialty and over-the-counter pharmaceutical products.
Complainant owns United States trademark Registration No. 2,178,198, registered August 4, 1998, with the United States. Patent and Trademark Office (“USPTO”) for the mark ANDANET. Complainant is also the owner of the <andanet.com> domain name. Complainant uses this domain name to connect to a website through which it informs potential customers about its ANDANET mark and services.
The Domain Name was registered with the Registrar on April 25, 2019 by Respondent and does not resolve to an active website.
Complainant asserts to be a leader in global generic pharmaceuticals, committed to transforming global healthcare. Complainant distributes generic, brand, specialty and over-the-counter pharmaceutical products from over 340 manufacturers to retail independent and chain pharmacies, nursing homes, mail order pharmacies, hospitals, clinics and physician offices.
Addressing the first element of the Policy, Complainant asserts that the Domain Name is confusingly similar to Complainant’s ANDANET trademark. Complainant contents the Domain Name is a typo-version of Complainant’s trademark replacing the “a” with “q”, so that the Domain Name resembles Complainant’s trademark. Complainant asserts its trademark is clearly recognizable in the Domain Name. Complainant also contends the addition of the generic Top-Level Domain (“gTLD”) “.com” does not differentiate the Domain Name from the trademark ANDANET (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), sections 1.7 and 1.11).
With respect to the second element of the Policy, Complainant contends that there is no evidence that Respondent has rights or a legitimate interest in the Domain Name. Noting the alleged confusing similarity of the Domain Name to the ANDANET trademark, Complainant refers to the WIPO Overview 3.0, section 2.13.1:
“Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent.”
Complainant further asserts an email has been sent out from a fake email address, “[...]@qndanet.com”, purporting to be working for Complainant. Complainant asserts Respondent is deceptively misidentifying itself as an actual employee of Complainant. The subject of the email was “Change of bank account” and the email contained Complainant’s email signature including the authentic email address of the employee, “[...]@andanet.com”. Complainant contends the email was a scam involving the impersonator sending an email to a customer of Complainant stating Complainant has opened a new bank account and that any outstanding payments should be sent to the new account. Complainant contends Respondent was impersonating Complainant with the intention of attempting fraud on Complainant’s customer. Complainant asserts there is no right or legitimate interest in holding a domain name for the purpose of furtherance of a fraud through impersonation. Moreover, Complainant contents Respondent cannot claim a right or legitimate interest in the Domain Name. Complainant asserts it has not found Respondent is commonly known by the Domain Name and there is no evidence of a bona fide offering of goods or services. Complainant points out Domain Name does not resolve to an active website.
With respect to the third element of the Policy, Complainant first asserts that bad faith exists pursuant to paragraph 4(b)(iii) of the Policy because Respondent uses a privacy shield and although use of a privacy or proxy registration service is not in itself an indication of bad faith, the manner in which such service is used can in certain circumstances constitute a factor indicating bad faith. Complainant points to section 3.1.4 of the WIPO Overview 3.0:
“As noted in section 2.13.1, given that the use of a domain name for per se illegitimate activity such as the sale of counterfeit goods or phishing can never confer rights or legitimate interests on a respondent, such behavior is manifestly considered evidence of bad faith.”
Additionally, pointing to the above referenced email, Complainant asserts at the time of registration of the Domain Name that Respondent was clearly aware of Complainant and its trademark. Lastly, Complainant contends the registration of a domain name including a trademark and its use for a deceptive email address points to bad faith.
Respondent did not reply to Complainant’s contentions.
Even though Respondent has defaulted, paragraph 4(a) of the Policy requires that, in order to succeed in this UDRP proceeding, Complainant must still prove its assertions with evidence demonstrating:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(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 in bad faith.
Because of Respondent’s default, the Panel may accept as true the factual allegations stated within the Complaint, and may draw appropriate inferences therefrom. See St. Tropez Acquisition Co. Limited. v. AnonymousSpeech LLC and Global House Inc., WIPO Case No. D2009-1779; Bjorn Kassoe Andersen v. Direction International, WIPO Case No. D2007-0605; see also paragraph 5(f) of the Rules (“If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint”). Having considered the Complaint, the Policy, the Rules, the Supplemental Rules and applicable principles of law, the Panel’s findings on each of the above cited elements are as follows.
Paragraph 4(a)(i) of the Policy requires Complainant to show that the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights. Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a trademark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0, section 1.2.
As discussed in the WIPO Overview 3.0, section 1.9, the consensus view is that “a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. Similarly, previous UDRP panels have consistently held that “a mere addition or a minor misspelling of Complainant’s trademark does not create a new or different mark in which Respondent has legitimate rights”. Express Scripts, Inc. v. Whois Privacy Protection Service, Inc. / Domaindeals, Domain Administrator, WIPO Case No. D2008-1302 (“Such insignificant modifications to trademarks is commonly referred to as ‘typosquatting’ or ‘typo-piracy,’ as such conduct seeks to wrongfully take advantage of errors by users in typing domain names into their web browser’s location bar.”) The spelling errors used in typosquatting have been found to produce domain names that are confusingly similar to the marks which they mimic. See, e.g., Yahoo! Inc. and GeoCities v. Data Art Corp., DataArt Enterprises, Inc., Stonybrook Investments, Global Net 2000, Inc., Powerclick, Inc., and Yahoo Search, Inc., WIPO Case No. D2000-0587. Here, the Domain Name is confusingly similar to the ANDANET mark differing only by the removal of the letter “a” and the addition of another letter “q”. Further, the signature line with the correct address in the email from Respondent to Complainant’s customer serves as evidence Respondent intended for the Domain Name to be confusingly similar with Complainant’s ANDANET trademark.
It is well established, and the Panel agrees, that typosquatting domain names are intended to be confusing and can constitute confusing similarity. See, First American Financial Corporation v. VistaPrint Technologies Ltd, WIPO Case No. DCO2016-0008; National Association of Professional Baseball Leagues, Inc, d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011). Accordingly, the Panel finds that Complainant has met its burden of showing that the Domain Name is confusingly similar to the ANDANET trademark in which Complainant has valid subsisting trademark rights.
Under the Policy, paragraph 4(a)(ii), Complainant has the burden of establishing that Respondent has no rights or legitimate interests in the Domain Name. Complainant need only make a prima facie showing on this element, at which point the burden of production shifts to Respondent to present evidence that it has rights or legitimate interests in the Domain Name. If Respondent has failed to do so, Complainant is deemed to have satisfied its burden under paragraph 4(a)(ii) of the Policy. See Vicar Operating, Inc. v. Domains by Proxy, Inc. / Eklin Bot Systems, Inc., WIPO Case No. D2010-1141; see also Nicole Kidman v. John Zuccarini, d/b/a Cupcake Party, WIPO Case No. D2000-1415; Inter-Continental Hotels Corporation v. Khaled Ali Soussi, WIPO Case No. D2000-0252.
The Policy, paragraph 4(c), provides a non-exhaustive list of circumstances in which a respondent could demonstrate rights or legitimate interests in a contested domain name:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
Complainant contents there is no right or legitimate interest in holding a domain name for the purpose of furtherance of a fraud through impersonation. Complainant further contends that Respondent is not commonly known by the Domain Name, that Complainant has not licensed, authorized or permitted Respondent to register the Domain Name, and that Respondent has not demonstrated any attempt to make legitimate use of the Domain Name.
Respondent has not denied any of Complainant’s assertions and has not put forth any evidence showing that it has a right or legitimate interest in the Domain Name. The Panel observes that the Domain Name does not resolve to any active webpage, but rather has been used to send emails in an attempt to impersonate an employee of Complainant, presumably for fraudulent purposes.
Moreover, the Panel finds that the purpose of registering the Domain Name was to engage in an email scam or a phishing scheme, none of which is a bona fide offering of goods or services. Twitter, Inc. v. Moniker Privacy Services / accueil des solutions inc, WIPO Case No. D2013-0062 (“This Panel accepts the Complainant’s contention that the Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services. It further finds that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.”); see also, CMA CGM v. Diana Smith, WIPO Case No. D2015-1774 (finding that the respondent had no rights or legitimate interests in the disputed domain name holding, “such phishing scam cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name”.) The undisputed evidence of impersonation, deception and fraud nullifies any possible basis for the acquisition of rights or legitimate interests by Respondent. See Afton Chemical Corporation v. Meche Kings, WIPO Case No. D2019-1082.
Accordingly, Complainant made a prima facie showing of Respondent’s lack of any rights or legitimate interests and Respondent has failed to come forward to rebut that showing. As provided for by paragraph 14 of the Rules, the Panel may draw such inference from Respondent’s default as it considers appropriate.
The Panel finds that Respondent does not have rights or legitimate interests in the Domain Name and that Complainant has met its burden under paragraph 4(a)(ii) of the Policy.
Under paragraph 4(a)(iii) of the Policy, Complainant must show that Respondent registered and is using the Domain Name in bad faith. A non-exhaustive list of factors constituting bad faith registration and use is set out in paragraph 4(b) of the Policy.
First, Complainant contends that Respondent used a privacy service to shield its identity from the WhoIs database. UDRP panels have recognized that, although privacy shields provide some benefits, they are often used for “more nefarious ends, such as obstructing proceedings under the UDRP, [and] hiding evidence of bad faith cybersquatting patterns…” Dr. Martens International Trading GmbH, Dr. Maertens Marketing GmbH v. Private Whois Service, WIPO Case No. D2011-1753. UDRP panels have found that there is a “lack of plausible justifications” for a parking website to use a privacy shield. Id; see also The Saul Zaentz Company d/b/a Tolkein Enterprises v. Eurobox Ltd. / “The Saul Zaentz Company”, WIPO Case No. D2008-0156 (“The attempt by the Respondent to hide its identity… support[s] a finding of bad faith”.) Here, there is no legitimate reason for Respondent to decide to hide its identity.
Second, it is well settled that the practice of typosquatting constitutes obvious evidence of the bad faith registration of a domain name. See, Admiral Group Plc and EUI Limited v. Cimpress Schweiz, Cimpress Schweiz GmbH, WIPO Case No. DCO2017-0043 (citing Longs Drug Stores California, Inc. v. Shep Dog, WIPO Case No. D2004-1069 (finding typosquatting to be evidence of bad faith domain name registration); Lexar Media, Inc. v. Michael Huang, WIPO Case No. D2004-1039 (“Typosquatting has been held under the Policy to be evidence of bad faith registration of a domain name”); Wal-Mart Stores, Inc. v. Longo, WIPO Case No. D2004-0816 (“[typosquatting] is presumptive of registration in bad faith”)). Typosquatting can be defined as “inherently parasitic and of itself evidence of bad faith”. Insurance Company v. Dyk Dylina/Privacy--Protect.org, WIPO Case No. D2011-0304.
Finally, the use of a deceptive domain name for an email scam has previously been found by UDRP panels to be sufficient to establish that a domain name has been registered and is being used in bad faith. See Samsung Electronics Co., Ltd. v. Albert Daniel Carter, WIPO Case No. D2010-1367; Securitas AB v. Whois Privacy Protection Service, Inc. / A. H., WIPO Case No. D2013-0117.
For these reasons, the Panel holds that Complainant has met its burden of showing that Respondent registered and is using the Domain Name in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <qndanet.com>, be transferred to Complainant.
John C McElwaine
Date: July 31, 2019
1 On the basis of the case file presented to the Panel, it seems that Respondent is not the true holder and registrant of the Domain Name. In light of a potential identity theft, the Panel, therefore, has redacted Respondent’s name from this Decision. However, the Panel has attached as Annex 1 to this Decision an instruction to the Registrar regarding transfer of the Domain Name, which includes the name of the registrant according to the Registrar’s WhoIs database. The Panel has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding, and has indicated that Annex 1 to this Decision shall not be published due to the exceptional circumstances of this case. See ASOS plc. v. Name Redacted, WIPO Case No. D2017-1520.
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