WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vifor (International) Ltd. v. Glenn Freeman
Case No. D2014-2065
1. The Parties
Complainant is Vifor (International) Ltd. of St. Gallen, Switzerland, internally represented.
Respondent is Glenn Freeman of Fort Worth, Texas, United States of America ("United States").
2. The Domain Name and Registrar
The disputed domain name <viforpharmas.com> is registered with Melbourne IT Ltd (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 25, 2014. On November 25, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 27, 2014, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on November 28, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was December 18, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on December 19, 2014.
The Center appointed Alexandre Nappey as the sole panelist in this matter on December 29, 2014. 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.
4. Factual Background
Complainant is a fully integrated specialty pharmaceutical company of the Galenica Group, headquartered in Bern, Switzerland. The company operates in four franchises: Iron, Vifor Fresenius Medical Care Renal Pharma Ltd., Infectious Diseases and Consumer Healthcare.
The Complainant is the registered owner of VIFOR PHARMA and VIFOR trademarks registered in numerous countries throughout the world, among which:
- International figurative mark VIFOR PHARMA no. 975 870 filed on February 12, 2008 and registered for products and services in classes 3, 5, 35, 39, 41, 42 and 45;
- Swiss trademark VIFOR no. 479 879 filed on December 28, 2000 and registered for products and services in classes 3, 5, 35, 39 and 42.
The disputed domain name was registered on July 8, 2014 in the name of an individual named Glenn
Freeman, based in Texas, United States. The disputed domain name is pointing to a construction page provided by the Registrar.
5. Parties' Contentions
1. Complainant submits that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights. It points out that the design logo or space between the two words "Vifor" and "pharma" are irrelevant and the addition of a suffix letter "s" to the disputed domain name is insufficient to negate the similarities which exist between the disputed domain name and Complainant's prior trademark.
2. Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant relies upon the fact that Respondent is not affiliated with Complainant in any way nor there is authorization by Complainant to register and use Complainant's trademark. Moreover, it points out Respondent is not known under the trademark VIFOR or VIFOR PHARMA.
Complainant additionally submits upon information and belief, Respondent has never used, or made preparations to use, the disputed domain name or any name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. Respondent is using the disputed domain name in connection with an employment-related and identity-theft scam, by impersonating Complainant in an effort to obtain personal information from innocent job-seekers.
3. The disputed domain name was registered and is being used in bad faith. Complainant relies upon the following:
Respondent registered the disputed domain name to engage in a scam in order to mislead individuals who aspired to secure a job with Complainant. Respondent is trying to create the impression that it is Complainant when in fact it has no relationship with Complainant. This constitutes bad faith use.
This is an improper use of Complainant's mark and is evidence of Respondent's bad faith.
The Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Notwithstanding the default of Respondent, it remains up to Complainant to make out its case in accordance with paragraph 4(a) of the Policy, and to demonstrate that:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith.
However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel "shall draw such inferences therefrom as it considers appropriate."
Having consideration to the parties' contentions, the Policy, the Rules, the Supplemental Rules and applicable substantive law, the Panel's findings on each of the above mentioned elements are the following:
A. Identical or Confusingly Similar
First, Complainant has established that it is the owner of various trademark registrations for the mark VIFOR and VIFOR PHARMA which predate the disputed domain name in issue.
In support of its contention that the disputed domain name is identical or confusingly similar to its trademark, Complainant submits that a visual and oral comparison between the disputed domain name and the trademark VIFOR PHARMA confirms the assertion that the disputed domain name is confusingly similar to Complainant's trademark.
The use of the letter "s" as a suffix at the end of the disputed domain name only produces the impression of a plural form of the trademark which means that the consumer will still be confused and identify the domain name as owned or related to the complainant.
On the facts of the case, the Panel finds that the use of the letter "s" as a suffix is insufficient to distinguish the disputed domain name from Complainant's trademark VIFOR PHARMA.
Complainant has established the first element of paragraph 4(a).
B. Rights or Legitimate Interests
Complainant contends that Respondent is not affiliated with Complainant and has never been authorized by Complainant to use Complainant's VIFOR and VIFOR PHARMA trademarks.
Complainant further contends that Complainant has no knowledge that Respondent has ever been commonly known by the disputed domain name or acquired any trademark or service mark rights in the disputed domain name.
There is no evidence that before any notice of these administrative proceedings Respondent used or made demonstrable preparations to use the disputed domain name <viforpharmas.com> in connection with a bona fide offering of goods or services.
The disputed domain name does not resolve to an active website. However, Respondent appears to have used the disputed domain name in connection with an employment-related and identity-theft scam, by impersonating Complainant in an effort to obtain personal information from job-seekers. In fact, the evidence before the Panel shows Respondent's attempt to impersonate Complainant through recruitment advertisement and follow-up messages.
The Panel finds that Complainant has made a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Respondent was given the opportunity by way of reply to demonstrate any rights or legitimate interests in the disputed domain name pursuant to paragraph 4(c) of the Policy. However, Respondent did not file a Response nor avail itself of the benefits of paragraph 4(c) of the Policy.
The Panel therefore concludes that Respondent has no rights or legitimate interests in the disputed domain name and that Complainant has therefore established the second element of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
Complainant has produced evidence that the disputed domain name has been used as a support to an email address used for impersonating Complainant, which was linked to bogus job advertisements on a third party website purportedly posted by Complainant.
Although the exact nature of the scheme is not clear, based on the available record it is obvious to this Panel that some fraudulent or criminal activity has been conducted under the disputed domain name.
The fact of impersonation shows that Respondent knew of Complainant's trademark when registering the disputed domain name.
Given the evidence of use of the disputed domain name for a fraudulent purpose, the Panel readily concludes that it was registered and is being used in bad faith by Respondent.
The Panel therefore finds that Complainant has established the third element of paragraph 4(a) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <viforpharmas.com> be transferred to the Complainant.
Date: January 12, 2015