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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pfizer Inc. v. Medlink Telecom GmbH
Case No. D2002-0547
1. The Parties
The Complainant is Pfizer Inc., having an office at 235 East 42nd Street, New York, New York, 10017, United States of America.
The Respondent is Medlink Telecom GmbH, having a mailing address at Postbus 54229 NA Amsterdam, NA UT1177, Netherlands.
2. The Domain Name and Registrar
The domain name is <pfeizer.com>.
The Registrar is Tucows, Inc. having an office at 96 Mowat Avenue,Toronto, Ontario Canada M6K 3M1.
3. Procedural History
A Complaint was filed in electronic form and in hard copy on June 14 and 17, 2002 respectively, by the Complainant with the WIPO Arbitration and Mediation Center (the "Center").
The Center obtained confirmation from the Registrar that the domain name was registered with it and that the domain name was registered to the Respondent.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN"), 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").
On June 20, 2002, the Center forwarded the Notification of Complaint and Commencement of Administrative Proceeding by email and post to Respondent. The due date for a response was indicated as July 10, 2002.
On July 17, 2002, the Center sent Notification of Respondent Default by email to Respondent as no response had been received by the due date.
The undersigned Panelist, Mr. Mark Yang, submitted to the Center a Statement of Acceptance and Declaration of Impartiality and Independence.
On August 5, 2002, the Center transmitted by email to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Mark Yang was formally appointed as the Sole Panelist and the projected Decision Date was indicated as August 19, 2002.
The Sole Panelist is satisfied with the Center’s assessment that it has verified the Complaint’s compliance with the relevant requirements of the Rules, Supplemental Rules and Policy, and that this Administrative Panel (hereinafter, "the Panel") was properly constituted and appointed in accordance therewith.
The Panel has not received any requests regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties (taking note of the Respondent’s default in responding to the Complaint).
Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), "to employ reasonably available means calculated to achieve actual notice to Respondent". Therefore, the Panel shall issue its decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of the Respondent’s response.
4. Factual Background
The Respondent registered the domain name with the Registrar on or about May 3, 2002.
In the Complaint and the associated Annexes, the Complainant submitted evidence and contentions of various factual and legal conclusions based on such evidence.
Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. The Panel’s position on some contentions is amplified below (in Discussion and Findings).
In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts much of (but not necessarily all) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence, as set out in the Complaint. The Panel accepts enough to render its decision below.
5. Parties’ Contentions
A. The Complainant alleges that the domain name <pfeizer.com> is identical or confusingly similar to the trademark PFIZER in which the Complainant has rights, that the Respondent has no rights to or legitimate interest in the domain name, and that the domain name is registered and being used in bad faith by the Respondent. The Complainant requests the transfer to it of the domain name.
B. The Respondent has not filed a response to the Complaint, and is in default.
6. Discussion and Findings
One requirement of fundamental due process is that a Respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a Respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
In this case, the Panel is satisfied that the Center took all steps reasonably necessary to notify the Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of the Respondent to furnish a response to the Complaint is not due to any omission by the Center. There is sufficient evidence, in the case file provided by the Center, for the Panel to conclude the Center discharged its obligations under Rules, paragraph 2(a) (see Procedural History, supra).
Where there is default, under Rule 14(a), "the Panel shall proceed to a decision on the complaint", and under the Rule 14(b), "the Panel shall draw such inferences [from the default] as it considers appropriate". Furthermore, Rule 15(a) provides that a "Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate". Since the Respondent has not submitted any material and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant.
Paragraph 4(a) of the Policy sets forth three elements to be established by a Complainant to merit a finding that a Respondent has engaged in abusive domain name registration, and to obtain relief. Each of the following three elements must be established by a Complainant:
(I) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(II) Respondent has no rights or legitimate interests in respect of the domain name; and
(III) Respondent’s domain name has been registered and is being used in bad faith.
I. The Respondent’s Domain Name is Identical or Confusingly Similar to the Trademark PFIZER in which the Complainant has Rights
Based on the uncontroverted evidence submitted by the Complainant and the facts and conclusions contended for (see Factual Background, above), the Panel finds that:
(a) the Complainant holds several registrations for the trademark PFIZER in the United States of America, in association with the various pharmaceutical preparations for humans and animals (hereinafter, "medicines"), including registrations #626,088 and #501,762 (each granted in the first half of the last century), and also holds trademark registrations for PFIZER in major countries elsewhere (as listed in the Complaint);
(b) the Complainant, has for decades, extensively used its trademark PFIZER in association with its medicines in the United States of America and elsewhere, and is currently using it on its "www.pfizer.com" website;
(c) the Complainant reported revenues of about US$32.3 billion for the year 2001 from its sales of medicines, and, with operations in more than 150 countries, is among the world’s largest medicines companies;
The Panel finds that the Complainant has significant rights in its trademark PFIZER in the United States of America and elsewhere;
The Panel finds that the mis-spelling of "PFIZER" as "pfeizer" is of insufficient legal significance to distinguish the latter from the former in the marketplace context of medicines, especially when sounded by an English-speaking audience.
Accordingly, the Panel finds that the domain name is confusingly similar to the PFIZER trademark in which the Complainant has rights.
II. Respondent has No Rights or Legitimate Interests in Respect of the Domain Name
Respondent has submitted no evidence, generally, and none under paragraph 4(c) of the Policy in particular, to support a finding of it having any rights or legitimate interests in respect of the domain name. This is sufficient for the Panel to accept the Complainant’s position on element II.
Furthermore, based on the uncontroverted evidence submitted by the Complainant and the factual and legal and conclusions contended for (see Factual Background, above), the Panel accepts in large measure the evidence and contentions of factual and law and conclusions set out in the Complaint related to element II. In particular, the Panel finds that (a), (b) and (c) under I above, were likely to have been very well known by the Respondent when it registered the domain name and that makes it very difficult, even if it had submitted evidence, for it to show it had rights or legitimate interests in the domain name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name.
III. Respondent’s Domain Name has been Registered and is Being Used in Bad Faith
Based on the uncontroverted evidence submitted by the Complainant and the factual and legal conclusions contended for (see Factual Background, above), the Panel accepts in large measure the evidence and contentions set out in the Complaint related to element III. In particular, the domain name was registered in bad faith because, it was done with knowledge of the Complainant’s trademark registrations of PFIZER and its use of PFIZER as a trademark for medicines. Also in particular, the domain name is being used in bad faith because, amongst other reasons, the use is to divert Internet traffic, for commercial gain, to the Respondent’s website, "www.safewebmedical.com" (which sells pharmaceuticals of the Complainant and its competitors, with a false association to the Complainant and its trademark PFIZER).
The Panel finds that the Respondent’s domain name has been registered and is being used in bad faith.
The Panel finds, within the meaning of paragraph 4(a) of the Policy, that the domain name <pfeizer.com> is confusingly similar to Complainant’s trademark PFIZER in which it has rights; that the Respondent has no rights or legitimate interests in respect of the domain name; and that the domain name has been registered and is being used in bad faith by the Respondent.
The Panel orders that the domain name <pfeizer.com> be transferred to the Complainant Pfizer Inc.
Date: August 19, 2002