WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vifor (International) Ltd. v. WhoisGuard Protected, WhoisGuard, Inc. / Morrison Knudsen
Case No. D2020-3467
1. The Parties
The Complainant is Vifor (International) Ltd., Switzerland, internally represented.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Morrison Knudsen, United States of America (“United States”).
2. The Domain Name and Registrar
The disputed domain name <viforrpharma.com> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 18, 2020. On December 18, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 18, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 26, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on December 26, 2020.
The Center verified that the Complaint together with the amendment to 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 28, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 17, 2021. The Respondent did not submit any response. On January 6, 2021, the Center received an email communication from a third party claiming to have received the written notice sent by the Center. The Center notified the Respondent’s default on January 20, 2021.
The Center appointed Steven A. Maier as the sole panelist in this matter on January 26, 2021. 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
The Complainant is a pharmaceuticals company. The Complainant is the owner of numerous trademark registrations for the mark VIFOR PHARMA including, for example, Switzerland trademark number 691826 for a combined trademark comprising the words VIFOR PHARMA and a logo, registered on August 25, 2016 in International Classes 3, 5, 41, 42, and 44.
The disputed domain name was registered on December 15, 2020.
The disputed domain name does not appear to have resolved to any active website.
5. Parties’ Contentions
The Complainant submits that the disputed domain name is confusingly similar to its trademark VIFOR PHARMA, being identical to that trademark but for the insertion of an additional letter “r”.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant states that the Respondent has not commonly been known by that name and that the Respondent is making neither bona fide commercial use nor legitimate noncommercial or fair use of the disputed domain name. The Complainant states that, on the contrary, the Respondent has used the disputed domain name for the purpose of an attempted fraud as explained further below.
The Complainant submits that the disputed domain name was registered and has been used in bad faith. The Complainant produces evidence that the Respondent sent emails from two separate email addresses “[…]@viforrpharma.com” to business partners of the Complainant, purporting to come from two genuine employees of the Complainant including a regional accounting manager. The emails requested the recipients to amend the Complainant’s bank details, substituting details that were in fact for a fake bank account in Mexico. The Complainant states that the fraud was discovered when one of its partners did not succeed in making the misdirected payment.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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.
Even in a case such as this where the Respondent has failed to reply to the proceeding, it is still necessary for the Complainant to show that each of the above elements is established.
A. Identical or Confusingly Similar
The Complainant has established that it has registered trademark rights in the mark VIFOR PHARMA. The disputed domain name is identical to the trademark but for the insertion of an additional letter “r” in between the two elements of the mark. This addition does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark, and the Panel therefore finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
In the view of the Panel, the Complainant’s submissions set out above give rise to a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has not filed a Response in this proceeding and has not submitted any explanation for its registration and use of the disputed domain name, or evidence of rights or legitimate interests on its part in the disputed domain name, whether in the circumstances contemplated by paragraph 4(c) of the Policy or otherwise. There being no other evidence before the Panel of any such rights or legitimate interests, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
The Panel finds the disputed domain name to be inherently misleading and can conceive of no reason for the Respondent to have registered the disputed domain name other than to impersonate the Complainant. The Panel also accepts the Complainant’s evidence, which is not disputed by the Respondent, that the Respondent has used the disputed domain name to impersonate the Complainant’s employees and its email addresses in an attempt fraudulently to divert monies intended for the Complainant to a fake bank account. Plainly this constitutes use of the disputed domain name in bad faith and the Panel therefore concludes that the disputed domain name has been registered and is being used 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 disputed domain name, <viforrpharma.com>, be transferred to the Complainant.
Steven A. Maier
Date: February 5, 2021