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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Eli Lilly and Company v. WhoisGuard Protected
Case No. D2007-0162
1. The Parties
The Complainant is Eli Lilly and Company, Indianapolis, Indiana, United States of America, represented by Baker & Daniels, United States of America.
The Respondent is WhoisGuard Protected, Westchester, California, United States
2. The Domain Name and Registrar
The disputed domain name <lillywomenshealth.com>is registered with eNom,
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 6, 2007. On February 7, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On February 8, 2007, eNom, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 February 14, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 6, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 7, 2007.
The Center appointed Sandra A. Sellers as the sole
panelist in this matter on March 28, 2007. 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
The Complainant, Eli Lilly and Company (“Lilly”), is a pharmaceutical company founded over 120 years ago. The company and its products (i.e, Prozac®, Cialis®, Zyprexa®, Humulin® N insulin, and others), are all well known. Lilly’s began using the LILLY® mark in commerce in 1895, and Lilly received a United States registration for LILLY in 1983. The LILLY® mark also is registered in at least ninety-eight countries.
Lilly has maintained a presence on the Internet since 1991, primarily through the website “lilly.com”. From 2000-2002, Lilly also held a domain name registration for <lillywomenshealth.com>, which is identical to the disputed domain name. Complainant states that the registration for <lillywomenshealth.com> was inadvertently allowed to lapse, and Respondent subsequently registered the disputed domain name on June 17, 2006.
Complainant states that the disputed domain name provides
links to sites related to various women’s health topics, and also advertises
and sells pharmaceutical products. Many of the related links direct consumers
to other web pages selling related health and pharmaceutical products, which
allegedly permits Respondent to recognize financial gain.
5. Parties’ Contentions
Complainant contends that the disputed domain name is identical or confusingly similar to Complainant’s LILLY® mark. Complainant further contends that Respondent has no rights or legitimate interest in the disputed domain name.
Complainant also alleges that the disputed domain name was registered and is being used in bad faith. Complainant states that Respondent is using Complainant’s LILLY® mark to draw consumers to the disputed domain name, and then realize financial gain through “click-through” revenues by diverting consumers to web pages selling related health and pharmaceutical products.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
Pursuant to paragraphs 4(a)(i) to (iii) of the Policy, for Complainant to prevail and have the disputed domain name transferred to it, Complainant must show that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) the Respondent(s) have no rights or legitimate interests in the disputed domain name; and
(iii) the Respondent(s) have registered and are using the disputed domain name in bad faith.
A. Identical or Confusingly Similar
The Panel finds that Complainant has rights in the registered mark containing LILLY. Even though more relevant under the second and third element, the Panel notes that Complainant’s use of the LILLY® mark and its related domain names precedes Respondents’ registration of the disputed domain name.
The Panel also finds that the disputed domain name, <lillywomenshealth.com>, is identical to the domain name previously registered by Complainant.
Respondent’s registration and use of the disputed domain name suggests to Internet consumers that the domain name is owned by or affiliated with Complainant. This suggestion is particularly strong in light of the fact that Complainant previously owned and operated a website with the identical domain name.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s registered mark, and identical to Complainant’s previous domain name, and that Complainant meets the first criterion of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Respondent has not been granted any rights by Complainant to use Complainant’s LILLY® mark, which is contained in its entirety in the disputed domain name. On the evidence before the Panel, Respondent does not appear to make any legitimate non-commercial or fair use of the domain name. The Panel is satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name. Respondent has not rebutted this.
Based on the foregoing and considering Respondent’s use of the domain name explained further below under paragraph 6.C., the Panel finds that Respondent does not have any rights or legitimate interests in respect of the domain name and that Complainant meets the second criterion of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The Respondent is located in the United States of America, where Complainant
has registered its LILLY® mark. Further, this Panel finds that Complainant’s
LILLY® mark is well-known. This Panel finds that the Respondent had at the least
constructive notice of Complainant’s mark, which is used in its entirety
in the disputed domain name. Accordingly, this Panel infers that Respondent
was aware of Complainant’s mark when Respondent registered the disputed
domain name. See, e.g., Jupiters Limited v. Aaron Hall, WIPO
Case No. D2000-0574, in which the panel found it “inevitable that
Respondent registered the domain names in full knowledge of Complainant’s
rights and interests.”
The Panel has also considered whether Complainant’s failure to renew and the resulting expiration of Complainant’s registration of <lillywomenshealth.com> should have any bearing in this case on the issue of whether Respondent registered the domain name in bad faith. However, Respondent has failed to file a Response to the Complaint and thus has not rebutted Complainant’s allegations. The Panel further notes that Complainant has stated under oath that it inadvertently allowed the registration to lapse, and by filing this Complaint has indicated a lack of intent to abandon the disputed domain name.
Paragraph 4(b)(iv) of the Policy states that there is bad faith if Respondent has attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of their website or of a product or service on their website or location.
Respondent has apparently used the disputed domain name, which contains Complainant’s well-known LILLY® mark in its entirety, to direct visitors to other vendors, it also is likely that Respondent receives “click-through” revenue by directing those visitors to the other websites. This Panel finds that Respondent has used the disputed domain name for commercial gain and with the intent to misleadingly divert consumers to other websites.
Additionally, this Panel notes that Respondent appears to have established
a pattern of bad faith use and registration of domain names. At least fourteen
previous WIPO UDRP decisions have found against Respondent and ordered that
the subject domain names be transferred to the complainants. Some of these cases
even involved this Complainant’s LILLY® mark, or the registered marks
of other well-known pharmaceutical companies. See, e.g., Sanofi-Aventis v.
WhoisGuard Protected, WIPO Case No. D2005-1267;
Lilly ICOS LLC v. WhoisGuard Protected, WIPO
Case No. D2005-0478; Hoffmann-La Roche Inc. v. WhoisGuard, WIPO
Case No. D2005-1288. Panels long have held that such a pattern supports
a finding of bad faith in the current dispute. (In DaimlerChrysler Corporation
and DaimlerChrysler Services North America LLC v. LaPorte Holdings, Inc.,
WIPO Case No. D2005-0070, the Panel stated
that “Previous panel decisions have found that registration of as few
as two or three infringing domain names can constitute a “pattern”
of bad faith conduct. See Nikon, Inc. and Nikon Corporation v. Photocom Korea,
WIPO Case No. D2000-1338, (two names constitute
pattern); Bellevue Square Managers, Inc. v. Redmond Web and Branden
F. Moulton, WIPO Case No. D2000-0056
(three names constitute pattern).
For the reasons given above, the Panel finds that
Complainant has established that Respondent has registered and used the domain
name in bad faith under paragraph 4(b) of the Policy.
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 <lillywomenshealth.com> be transferred to the Complainant.
Sandra A. Sellers
Dated: April 11, 2007