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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

AstraZeneca AB v. Johnny Carpela

Case No. D2005-0352

 

1. The Parties

The Complainant is AstraZeneca AB, Sцdertдlje, Sweden, represented by Groth & Co KB, Sweden.

The Respondent is Johnny Carpela, Sumas, Washington, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <astrozeneca.com> registered with Go Daddy Software.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 6, 2005. The hard copy was received on April 7, 2005.

On April 7, 2005, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue.

On April 8, 2005, Go Daddy Software transmitted by email to the Center its verification response. Go Daddy Software confirmed that the Respondent is the current registrant, administrative, billing, and technical contact for the domain name and inter alia provided contact details for the Respondent.

The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 the Respondent of the Complaint, and the proceedings commenced on April 13, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was May 3, 2005. Said notification was sent by e-mail and in hard copy by courier. The attempted service of the hard copy was unsuccessful. It was consigned to the address provided by the Respondent in his registration details, however it was returned undelivered by the courier as it was an incorrect address. There was no bounce on the e-mail notification sent by the Center to the Respondent at the e-mail address provided by the Respondent for the technical, administrative and billing contact.

The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default by e-mail on May 4, 2005.

The Center appointed James Bridgeman as the sole panelist in this matter on May 11, 2005. This 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.

In the view of this Panel, proper procedures were followed and this Panel was properly constituted.

 

4. Factual Background

The company Astra AB was founded in 1913. In 1999, the Swedish company merged with Zeneca Group PLC in United Kingdom of Great Britain and Northern Ireland and the name was changed to AstraZeneca AB. The Complainant is one of the world’s leading companies that develops and sells pharmaceutical products. The corporate headquarters is in London, United Kingdom of Great Britain and Northern Ireland and the R&D headquarters is located in Sцdertдlje, Sweden. The production and marketing takes place in over 100 countries around the world and the Complainant has about 64,000 employees. The Complainant provides medicines designed to fight disease in areas such as cancer, cardiovascular, gastrointestinal, infection, neuroscience and respiratory. The Complainant’s main website is at the “www.astrazeneca.com” address.

The Complainant’s claim is based on the following trademark registrations owned either directly or indirectly by the Complainant through its subsidiaries:

Registered United States of America trademark ASTRAZENECA having registration number 2,663,581, dated December 17, 2002, registered in the name of Astrazeneca Plc a United Kingdom public company.

Registered Swedish trademark (word) ASTRA having registration number 55137, dated November 1, 1941, for the classes 1 and 5 registered in the name of the Complainant.

Registered Swedish trademark (word) ASTRA having registration number 115518, dated March 24, 1966, for the classes 1 to 42 registered in the name of the Complainant.

Registered Swedish trademark (word) ZENECA having registration number 260885, dated September 23, 1994, for the classes 1, 5, 10, 35, 41 and 42 registered in the name of AstraZeneca UK Limited.

Registered CTM trademark (word) ASTRA having registration number 000038604, dated March 19, 1998, for the classes 5 and 10 registered in the name of the Complainant.

Registered CTM trademark (word) ASTRAZENECA having registration number 001192137, dated October 6, 2004, for the classes 1, 2, 5, 10, 29, 35, 37, 39, 41 and 42, with priority dating back to 1998, from the US trademark registered in the name of said Astrazeneca Plc a United Kingdom public company.

The Respondent registered said domain name in issue on February 25, 2003.

 

5. Parties’ Contentions

A. Complainant

The Complainant requests that this Panel issue a decision that said domain name <astrozeneca.com> be transferred to the Complainant.

The Complainant submits that the domain name is identical or confusingly similar to the abovementioned registered trademarks in which the Complainant has rights.

Save for the addition of the gTLD “.com” extension, and the change of one single letter, the spelling of the disputed domain name <astrozeneca.com> is identical to the ASTRAZENECA trademark and incorporates the ZENECA trademark in its entirety.

The Complainant submits that the disputed domain name <astrozeneca.com> is therefore confusingly similar to the trademark ASTRAZENECA in which the Complainant has rights.

The Complainant further submits that the Respondent has no rights or legitimate interests in respect of said domain name. On January 12, 2005, the Complainant sent a letter via certified mail and via e-mail, requesting the Respondent to transfer the domain name to the Complainant. The e-mail was returned undelivered to the sender after five days. On January 21, 2005, the Respondent received the letter via certified mail, according to the signed documentation from the Post Office dated January 21, 2005. The Complainant has submitted copies of this correspondence including a copy of the official document proving that the Respondent received the Complainant’s letter. Having received no answer from the Respondent, the Complainant sent a reminder via e-mail on February 14, 2005. The Complainant cannot verify that the Respondent actually received the second e-mail but the Complainant did not receive any message stating that the e-mail was undelivered. Nonetheless, the Respondent has not replied to either the Complainant’s letter or to the e-mail message.

To the best of the Complainants’ knowledge, the Respondent is not an owner of any trademark, service mark, name or sign similar to the domain name in question. The Respondent has no rights or legitimate interests in respect of said domain name <astrozeneca.com>. Neither is the Respondent using the domain name in connection with a bona fide offering of goods or services.

The Respondent is redirecting the disputed domain name to a commercial website at the “www.canadapharmacy.com” address, on which website pharmaceutical products are sold for profit. The Complainant has submitted printouts from said website with a copy of a WHOIS search against the <canadapharmacy.com> domain name registration.

The Complainant therefore submits that it follows that the Respondent is taking unfair commercial advantage of the goodwill associated with the Complainant’s trademark by having accidental Internet traffic redirected to a commercial website selling pharmaceutical products. The Respondent is misleading and diverting consumers that search for the Complainant’s trademark on the Internet. The abovementioned behavior of registering a misspelled trademark as a domain name is often referred to as “typosquatting”.

The Respondent has been involved in at least two very similar UDRP proceedings where it was held that the Respondent’s re-direction of Internet users to the above-mentioned website where pharmaceuticals are sold was not a matter of non-commercial fair use. In this regard the Complainant refers to the decisions of the UDRP panels in CVS Pharmacy, Inc. v. Johnny Carpela, WIPO Case No. D2004-0038, and Gerd Petrik v. Johnny Carpela, WIPO Case No. D2004-1043.

The Complainant submits that it is therefore fair to conclude that the Respondent has a documented history of previous domain name registrations being identical or confusingly similar to third party trade marks and that this behaviour constitutes a clear pattern. Having the above in mind, the Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name.

The Complainant submits that the disputed domain name <astrozeneca.com> was registered and is being used in bad faith. In support of this allegation, the Complainant states that it has continuously used the trademark ASTRAZENECA since 1999. As said trademark is used in over 100 countries, the Complainant submits that it is fair to say that the trademark is well known within the pharmaceutical area, the very same area in which the Respondent is actively using the disputed domain name for commercial gain.

The Respondent registered the domain name on February 25, 2003, several years after the Complainant’s first use of said ASTRAZENECA trade mark. The Complainant submits that it goes without saying that the Respondent must have been aware of the Complainant’s trade mark when registering the disputed domain name since he is using said confusingly similar domain name to redirect Internet traffic to a commercial website selling pharmaceutical products.

The fact that the Respondent received correspondence from the Complainant and has chosen not to reply further indicates that the Respondent is attempting to avoid contact with the Complainant in order to continue using the disputed domain name for his commercial activities with the intention of attracting Internet traffic for financial gain or alternatively disrupting the business of the Complainant, who is a competitor in certain areas.

The Complainant submits that the Respondent is intentionally attempting to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of a product or service on the Respondent’s website.

Considering the fact that the disputed domain name is used for a commercial website selling pharmaceutical products and the fact that the Respondent has been involved in at least two previous similar UDRP proceedings, the Complainant submits that the Respondent must have been aware of the Complainant’s trademark ASTRAZENECA when registering and using the confusingly similar domain name <astrozeneca.com>.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy places on the Complainant the onus of proving that:

(i) the domain name in dispute 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 said domain name; and

(iii) said domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant itself is not the registered owner of the ASTRAZENECA trademark. Both the USA registration and the CTM registration of the ASTRAZENECA mark are registered in the name of a United Kingdom public limited company Astrazeneca Plc. The Complainant has registered the ASTRA trademark in Sweden and as a CTM and yet another entity AstraZeneca UK Limited is the registered owner of the ZENECA registrations.

The Complainant has nonetheless claimed that it is the owner of all these registrations either itself or through its subsidiaries. It makes this assertion without any evidence of its relationship with either Astrazeneca Plc or AstraZeneca UK Limited. On the other hand it would seem clear from the Complaint that the Complainant has common law rights in the use of the mark ASTRAZENECA as the Complainant has traded using this name since the mark was created following the merger in 1999, of Astra AB with Zeneca Group PLC to form AstraZeneca AB. The combination of these two words produces a distinctive name and mark.

It is clear that the <astrozeneca.com> domain name is almost identical and certainly confusingly similar to the ASTRAZENECA mark, there being only one letter in the difference. The position of said letter as the fifth letter in an eleven letter word that has two distinctive elements and the fact that there is likely to be very little aural distinction between the pronunciation of the words “astrozeneca” and “astrazeneca” is likely to create confusion among Internet users.

While these proceedings may have been more appropriately brought by Astrazeneca Plc., on the balance of probabilities the Complainant has established that it has rights in the ASTRAZENECA mark and in the circumstances the Complainant has succeeded in proving the first element of the test in paragraph 4(a) (i) of the Policy.

B. Rights or Legitimate Interests

The Respondent did not respond to the correspondence of the Complainant, neither did he deliver a Response in these Administrative Proceedings. In the circumstances, this Panel has no option but to accept the Complainant’s submissions and evidence that the Respondent has no rights or legitimate interest in the domain name. The Complainant has clearly adopted the Complainants trademark, making one minor change to the spelling of same and registered it as a domain name on the “.com” gTLD.

It is clear that the whole point of registering said domain name was to use it in order to establish some connection between said domain name and the Complainant’s business. The evidence is that the Complainant has directed traffic using said domain name to a website that has been established to sell pharmaceuticals. Since the Complainant has a protectable reputation in the pharmaceutical industry, such activity is clearly at variance with the Respondent having or acquiring any rights or legitimate interest in said domain name.

The Complainant has succeeded in proving the second element of the test in paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The evidence that the Respondent has arranged for the domain name in dispute to resolve to the “www.canadapharmacy.com” website has not been challenged.

While there is no evidence of any connection between the Respondent and the business that maintains the “www.canadapharmacy.com” website, it is clear that the Respondent’s purpose in registering the domain name was for commercial gain as distinct from any non-commercial purpose. It is further clear that in registering said domain name the Respondent intended to take unfair advantage of the Complainant’s reputation and goodwill.

Given that the Respondent has arranged for the domain name to resolve to a website offering retail sales of pharmaceuticals and given that the Complainant is a pharmaceutical company with a long established reputation, there is no possibility that the Respondent chose the domain name for any reason other than to give the impression of a relationship with the Complainant and its trademark and to cause confusion as to the source, sponsorship, affiliation, or endorsement of that website and to divert Internet users to that site.

In the circumstances this Panel accepts that on the balance of probabilities, the Respondent’s actions are creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of said “www.canadapharmacy.com” website or of a product or service offered on that website. The fact that there is no evidence that said website is owned by the Respondent does not preclude this Panel from finding that such activity constitutes a use in bad faith.

In reaching this conclusion, this Panel is fortified by the fact that it is convinced that the Respondent engaged in “typosquatting” as alleged by the Complainant. The Respondent clearly chose to register a word that was almost identical to the Complainant’s name and mark, making only one change of one letter. This was clearly done with intention.

The Complainant has succeeded in proving the third element of the test in paragraph 4(a)(iii) of the Policy.

 

7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <astrozeneca.com> be transferred to the Complainant.

 


 

James Bridgeman
Sole Panelist

Dated: May 23, 2005

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-0352.html

 

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