Pfizer Inc. v. Medlink Telcom GmbH
WIPO Case No. D2002-0547
- Outcome
- Transfer
- Domain names
- pfeizer.com
- Complainant
- Pfizer Inc.
- Respondent
- Medlink Telcom GmbH
- Panelist
- Mark Yang
- Decided
- 06 Sept 2002
- Response
- The respondent did not reply
- Language
- English
Source: WIPO Arbitration and Mediation Center. Official copy: https://www.wipo.int/amc/en/domains/decisions/html/2002/d2002-0547.html
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.
7. Decision
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.
Mark Yang
Sole Panelist
Date: August
19, 2002
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