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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pfizer Inc. v. WhoisGuard Protected
Case No. D2006-0911
1. The Parties
The Complainant is Pfizer Inc., New York, NY 10017-5755, United Sates of America, represented by Kaye Scholer, LLP, United Sates of America.
The Respondent is WhoisGuard Protected, Westchester, California, United States of America.
2. The Domain Name and Registrar
The disputed domain name <pfizerhelpfulanswer.com> is registered with
eNom using the Mobile Name Services, Inc. registrar credential. While Mobile
Name Services, Inc. is listed as the registrar for the domain, the name exists
in eNom’s database and eNom has administrative control over it.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 18, 2006. The Center received a hard copy of the Complaint and acknowledged receipt of the Complaint on July 20, 2006. On July 20, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On July 20, 2006, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In emails sent by the Center on July 28, 2006, and a response from eNom on July 31, 2006, the Center was able to clarify that while Mobile Name Services, Inc. is listed as the registrar for the domain, the name exists in eNom’s database and eNom has administrative control over it. In response to a notification by the Center on July 27, 2006, that the Complaint was administratively deficient in that the correct registrar was not identified, the Complainant filed an amendment to the Complaint on July 27, 2006, setting forth the proper registrar. 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”), 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 August 3, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 23, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 29, 2006.
The Center appointed James H. Grossman as the Sole
Panelist in this matter on September 28, 2006. 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
Pfizer Inc. (“Pfizer or Complainant”) is one of the world’s largest pharmaceutical manufacturers and sellers and advises that it maintains global operations in more than 150 countries. Pfizer owns numerous trademark registrations for the mark PFIZER throughout the world. Pfizer has used the PFIZER mark since 1849 and has owned the United States trademark registration since August 24, 1948 (U.S. Trademark Registration No. 501,762). In addition, Pfizer also owns common law trademark rights in the marks PFIZER HELPFUL ANSWERS and HELPFUL ANSWERS by virtue of its extensive use of those marks in connection with it patient assistance programs which it offers, and by virtue of its ownership of pending United States trademark applications for those two marks. Pfizer owns the domain name <pfiserhelpfulanswers.com> and all of these names are featured in Pfizer ads in the United States, copies of which were supplied by Complainant with its Complaint.
Since Respondent has failed to file any response to the Complaint, there is no way of knowing any of its reasoning as to the factual background relating to the domain name in question.
A visit by the Panel to the respective sites indicated
that Respondent’s website in addition to some Pfizer products lists airline
tickets, employment, car insurance, ringtones, dating, houses for sale and mortgages
for the visitor to the site. On the other hand, Complainant’s site relates
to finding solutions for people without prescription drug insurance and related
5. Parties’ Contentions
Complainant alleges that Respondent’s unfair and predatory use of a “typosquatting” domain name seeks to attract and mislead consumers seeking information from the Pfizer patient assistance programs. Thus, Respondent by simply omitting the plural forming “s” incorporates the well recognized Pfizer trademark and diverts those seeking important medical information to a site displaying paid advertisements and pay-per-click links to commercial sites selling not only Pfizer products but those of its competitors. Complainant alleges that this kind of predatory bad faith conduct is exactly what the Policy in intended to prevent. Complainant argues that the PFIZER name is extremely well-known and famous throughout the world for among other reasons that the Company stands behind the product. Complainant demonstrates in its complaint that numerous UDRP decisions have recognized Complainant’s well-established rights in its PFIZER mark. Complainant states that it has used the marks in issue since at least 2004 in close association with the Pfizer name. It is stated that virtually every one of Pfizer’s advertisements for pharmaceutical products in the United States features both of the marks in issue as shown in the advertising materials enclosed as exhibits. Both of the marks in issue are the subject of pending trademark applications in the Untied States.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
Pursuant to the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the Domain Name 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 Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. Policy, Paragraph 4(a).
A. Identical or Confusingly Similar
The Panel finds that there is no question that the Respondent’s domain name at issue is confusingly similar to the mark of Complainant in that, except for the omission of the plural-forming “s”, the mark replicates the Complainant’s mark and, if not identical, is certainly confusingly similar and likely to cause confusion among Complainant’s customers. The average consumer would clearly believe that this site was controlled by the Pfizer company which sells products around the world and that the products therein could be relied upon to meet the standards of Pfizer.
B. Rights or Legitimate Interests
According to Complainant, Respondent is in no way affiliated with Complainant and Complainant confirms that it has never authorized Respondent to register or use the domain names at issue. Further Complainant’s adoption and registration of its Trademarks precedes Respondent’s registration of the domain name at issue on November 26, 2005. It is difficult to believe that Respondent did not have knowledge of the Pfizer connection to these domain names at issue and determined to make an illegitimate commercial and unfair use of the domain names at issue with the clear intent to use these domain names for commercial gain. Notwithstanding the Panel’s belief as to intent, under the Policy, Complainant is required to make out an initial prima facie case that the Respondent lacks rights or legitimate interests. Once such prima facie case is made as in this case, Respondent carries the burden of demonstrating rights or legitimate interests in the domain name. Thus, Respondent’s failure to respond in this case to the Complaint provides the Panel with sufficient reason to rule that Respondent had no rights or legitimate interests in the domain name at issue. See paragraph 4(a)(ii) of the UDRP.
C. Registered and Used in Bad Faith
The registration of a domain name incorporating a widely recognized mark is
itself evidence of bad faith registration. Pfizer Inc. v. Fizer, Inc., WIPO
Case No. D2005-0285 (May 11, 2005). Also the Panel is of the view that,
without a showing to the contrary by the Respondent which was not forthcoming,
it must be presumed that Respondent was fully aware of the close connection
of the domain name at issue to those of Complainant. This is borne out by references
to Pfizer and other pharmaceutical companies on the home page of Respondent’s
website, as well as references to “free” Pfizer medicines and other
misleading references to the site’s connection to Complainants’
patient assistance programs. The issue of bad faith is finally confirmed by
what the Panel believes is the intention of Respondent to attract Internet users
to its site for commercial gain by creating the likelihood of confusion with
the Complainant’s mark as to the source, sponsorship, affiliation or endorsement
“of Respondent’s site” or “of a product or service”
on Respondent’s site. The facts point to the fact that this is exactly
what this Respondent is doing. The Respondent seeks to intentionally misdirect
and divert customers looking for Pfizer product information and by using links
diverts these internet users away from the very information which they seek
with the hope of selling such users other Pfizer and non-Pfizer products. Complainant
has cited a litany of cases demonstrating that the use of a mark such as in
this case to general visitors to a Respondent’s for-profit site constitutes
bad faith. See Pfizer Inc. v. Fizer Inc., supra. Finally, the sale of
products in competition with the mark owner’s products, as the Respondent
is actively doing in this case, constitutes bad faith. See, e.g. Pfizer Inc.
v.Lorna Kang, WIPO Case No. D2002-0480
(July 30, 2002). Accordingly, the Panel finds that the domain name at issue
has been registered and used in bad faith.
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 <pfizerhelpfulanswer.com> be transferred to the Complainant.
James H. Grossman
Dated: October 12, 2006