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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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