Westmore · UDRP DecisionCheapvalium24x7.com
The Panel ordered transfer of <cheapvalium24x7.com>. It found the domain confusingly similar to the Complainant’s registered VALIUM trademark because it incorporated the mark in full with the descriptive terms “cheap” and “24x7.” The Respondent lacked rights or legitimate interests because the domain was used for a website offering competing generic products, and no Response or evidence of legitimate use was submitted. Bad faith was established from the Respondent’s inferred knowledge of the earlier VALIUM mark, the competing commercial use, and the intentional attraction of Internet users through confusion.
The timeline behind cheapvalium24x7.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind cheapvalium24x7.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates a direct commercial-diversion pattern in which a pharmaceutical trademark was combined with sales-oriented descriptive terms and used for an online pharmacy offering competing generic products. The Panel treated the same website use as central to both the absence of legitimate interests and the finding of registration and use in bad faith.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION F. Hoffmann-La Roche AG v. Dima Chromov / Domain Administrator, See PrivacyGuardian.org Case No. D2015-1385 1. The Parties The Complainant is F. Hoffmann-La Roche AG of Basel, Switzerland, represented internally. The Respondent is Dima Chromov of Moscow, Russian Federation / Domain Administrator, See PrivacyGuardian.org of Phoenix, Arizona, United States of America. 2. The Domain Name and Registrar The disputed domain name <cheapvalium24x7.com> is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 6, 2015. On August 6, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 6, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 10, 2015, providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on August 10, 2015. 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” or “UDRP”), 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 12, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 1, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 9, 2015. The Center appointed Johan Sjöbeck as the sole panelist in this matter on September 22, 2015. 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 has submitted evidence that it is the owner of the international trademark VALIUM with registration No. 250784 with priority since October 20, 1961. The disputed domain name was registered on March 30, 2015. 5. Parties’ Contentions A. Complainant The Complainant belongs to one of the world’s leading research-focused healthcare groups in the fields of pharmaceuticals and diagnostics with operations in more than 100 countries. The Complainant has built up a worldwide reputation in psychotropic medications through the VALIUM trademark which designates a sedative and anxiolytic drug belonging to the benzodiazepine family. VALIUM is protected as a registered trademark in a large number of countries worldwide. The disputed domain name incorporates the Complainant’s trademark VALIUM in its entirety. The addition of the descriptive elements “cheap” and “24x7”, which refers to opening times, do not sufficiently distinguish the disputed domain name from the trademark. Furthermore, VALIUM is a well-known trademark through long and extensive use and the notoriety will increase the likelihood of confusion. As a result, the disputed domain name is confusingly similar to the Complainant’s trademark. The Complainant has exclusive and prior rights in the trademark VALIUM which precede the Respondent’s registration of the disputed domain name. The Respondent has no connection or affiliation with the Complainant and has not received any license or consent, express or implied, to use the Complainant’s mark VALIUM. Furthermore, the Respondent is using the Complainant’s famous trademark to operate an online pharmacy which sells competing products, i.e. the generic product diazepam. As it appears, the disputed domain name resolves to an online pharmacy webpage entitled “Generic Valium. Buy Valium online”. It thereafter displays, under the heading “Valium Generic”, two categories of products described respectively as “Valium (Diazepam) 10 mg” and “Valium Brand (Gedeon Richter) 10 mg”. Such activity does not represent a legitimate noncommercial or fair use under the Policy. The Respondent is using the Complainant’s trademark VALIUM to sell diazepam, not VALIUM. Thus, the Respondent is deliberately using a domain name with a connection to the Complainant’s well-known mark VALIUM in order to mislead consumers, by creating a likelihood of confusion as to the source, affiliation or endorsement of the Respondent’s website or of the products or services posted on the Respondent’s website. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, the Complainant must prove each of the following: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) that the Respondent has no rights or legitimate interests in the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant is, according to the submitted evidence, the owner of the registered trademark VALIUM. The disputed domain name <cheapvalium24x7.com> incorporates the Complainant’s trademark VALIUM in its entirety with the addition of the common descriptive elements “cheap” and “24x7”. The addition of the descriptive elements to the VALIUM trademark does little to eliminate the confusing similarity. Having the above in mind, the Panel concludes that the disputed domain name <cheapvalium24x7.com> is confusingly similar to the Complainant’s trademark VALIUM and that the Complainant has proved the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant must show that the Respondent has no rights or legitimate interests with respect to the disputed domain name. The Respondent may establish rights or legitimate interests in the disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy any of the following: (i) that it uses or has made preparations to use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services prior to the dispute; or (ii) that it is commonly known by the disputed domain name, even if it has not acquired any trademark rights; or (iii) that it is making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark. The Complainant’s trademark registration for VALIUM predates the Respondent’s registration of the disputed domain name <cheapvalium24x7.com>. According to the submitted evidence, the website to which the disputed domain name resolves offers generic products for sale that directly compete with the Complainant’s product VALIUM. Thus, the evidence in the case indicates that the Respondent is neither making a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark. Although given the opportunity, the Respondent has not submitted any evidence indicating that the Respondent is commonly known by the disputed domain name or that the Respondent owns any trademark rights. By not submitting a Response, the Respondent has failed to invoke any circumstances which could demonstrate, pursuant to paragraph 4(c) of the Policy or otherwise, any rights or legitimate interests in respect of the disputed domain name. Thus, there is no evidence in the case that refutes the Complainant’s submissions, and the Panel concludes that the Complainant has also proved the requirement under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Under paragraph 4(b) of the Policy, evidence of bad faith registration and use include without limitation: (i) circumstances indicating the disputed domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the owner of a trademark or to a competitor of the trademark owner, for valuable consideration in excess of the documented out-of-pocket costs directly related to the disputed domain name; or (ii) circumstances indicating that the disputed domain name was registered in order to prevent the owner of a trademark from reflecting the mark in a corresponding disputed domain name, provided there is a pattern of such conduct; or (iii) circumstances indicating that the disputed domain name was registered primarily for the purpose of disrupting the business of a competitor; or (iv) circumstances indicating that the disputed domain name has intentionally been used in an attempted to attract, for commercial gain, Internet users to the Respondent’s website or other online location, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on that website or location. The Complainant’s trademark registration for VALIUM predates the registration of the disputed domain name <cheapvalium24x7.com>. In the absence of any evidence to the contrary, the Panel agrees with the Complainant that the Respondent must have had knowledge of the Complainant’s trademark VALIUM when registering the disputed domain name especially since the Respondent is using the disputed domain name to sell generic products that directly compete with the Complainant’s VALIUM product. Furthermore, the Complainant sent a cease and desist letter to the Respondent. However, the Respondent did not reply and did not cease the use. Thus, the evidence in the case before the Panel indicates that the disputed domain name <cheapvalium24x7.com> has intentionally been registered and used in an attempt 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 website or of a product or service on the website. There is no evidence in the case file that refutes the Complainant’s submissions. The Panel therefore concludes that the Complainant has proved the requirements under paragraph 4(a)(iii) of the Policy and that the disputed domain name <cheapvalium24x7.com> has been registered and used in bad faith. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <cheapvalium24x7.com> be transferred to the Complainant. Johan Sjöbeck Sole Panelist Date: October 1, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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