Westmore · UDRP DecisionCvsheailth.com
The Panel ordered transfer of <cvsheailth.com>. It found the domain confusingly similar to the CVS and CVS HEALTH marks because it incorporated CVS and used the misspelled term “heailth.” Respondent did not rebut Complainant’s prima facie showing on rights or legitimate interests. Bad faith was established based on the fame of Complainant’s marks, typosquatting, passive holding, use of a privacy service, the absence of an explanation, and the implausibility of a good-faith use.
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The decision illustrates how an obvious one-letter misspelling of a well-established mark can satisfy both confusing similarity and bad faith. It also shows that an inactive domain may still support transfer when typosquatting, longstanding trademark rights, privacy protection, lack of explanation, and the implausibility of good-faith use are considered together.
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 CVS Pharmacy, Inc. v. Domains By Proxy, LLC / Admin Admin Case No. D2021-3484 1. The Parties Complainant is CVS Pharmacy, Inc., United States of America, represented by The GigaLaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States of America (“U.S.”). Respondent is Domains By Proxy, LLC, U.S. / Admin Admin, U.S. 2. The Domain Name and Registrar The disputed domain name <cvsheailth.com> is registered with Wild West Domains, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2021. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 22, 2021, 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, which reflected the privacy information. The Center sent an email communication to Complainant on October 26, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on October 27, 2021. The Center verified that the Complaint together with the amended 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 Respondent of the Complaint, and the proceedings commenced on October 28, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 17, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 22, 2021. Respondent sent an informal communication on December 2, 2021 The Center appointed Clark W. Lackert as the sole panelist in this matter on December 14, 2021. 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 A. About Complainant Complainant is a health innovation company in the U.S., with approximately 300,000 workers in more than 9,900 retail locations and approximately 1,100 walk-in medical clinics in 49 states, the District of Columbia and Puerto Rico serving 4.5 million customers daily. Complainant ranks as number 5 on the “Fortune 500” list of America’s largest corporations. Complainant is the registrant of and uses the domain name <cvs.com> (created January 30, 1996) and is also the registrant of and uses the domain name <cvshealth.com> (created April 15, 2005). Complainant is the owner of at least 520 trademark registrations in at least 27 countries or jurisdictions worldwide for trademarks that consist of or contain CVS or CVS HEALTH, including the U.S. registration No. 72357104, registered on September 7, 1971, for the mark CVS, and U.S. registration no. 5055141, registered on October 4, 2016, for the mark CVS HEALTH. The disputed domain name was registered under privacy protection on December 4, 2020, long after Complainant’s trademark rights were created. According to the evidence included in the case file, the disputed domain name refers to an inactive website since the filing of the Complaint. B. Respondent Respondent did not reply to the Complainant’s contentions. In Respondent’s email of December 2, 2021, Respondent stated, “I don’t know why I am copied on these emails”. 5. Parties’ Contentions A. Complainant Complainant contends that Respondent copied its trademarks CVS and CVS HEALTH in their entireties with the slight variation of at typosquatted spelling of “health” as “heailth”. Respondent has done this with no reasonable claim of rights or legitimate interests, and in bad faith. There is also evidenced submitted that the CVS trademark is famous and/or widely known, given that it is protected by at least 520 trademark registrations in at least 27 jurisdictions worldwide, the oldest of which was registered more than 50 years ago. Additionally, previous panels have referred to “the reputation and fame” of the CVS trademark, see Aetna Inc., CVS Pharmacy, Inc. v. Chang Jiang Li, Li Chang Jiang , WIPO Case No. D2018-0795 , and that it is “widely known in many countries”, see Aetna Inc. and CVS Pharmacy, Inc. v. James , WIPO Case No. D2018-0796 . B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar Complainant has presented evidence of established rights in its trademarks in the health field, and these rights precede the registration of the disputed domain names by a number of years. The disputed domain name consists of Complainant’s trademark CVS with the added term “health” in a typosquatted form, namely, “heailth”, and a closer imitation of Complainant’s trademark CVS HEALTH with the “health” portion of the mark typosquatted, which creates confusing similarity. It is well settled that typosquatting is clear evidence of likelihood of confusion. See, e.g. , section 1.9 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“ WIPO Overview 3.0 ”): “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element. This stems from the fact that the domain name contains sufficiently recognizable aspects of the relevant mark”. See also, e.g. , The Net-A-Porter Group Limited v. Online Management LTD., a/k/a Online Resource Management Ltd. , WIPO Case No. D2013-1403 (finding confusing similarity despite “the addition of a single letter” in the disputed domain name); Hotwire, Inc. v. Webatopia Marketing Limited , WIPO Case No. D2012-1985 (finding confusing similarity despite “the addition of one letter” in the disputed domain name); and Zions Bancorporation v. Hobart Jervis , WIPO Case No. D2014-0772 (finding confusing similarity despite the “addition of [one] letter” in the disputed domain name). The disputed domain Name contains the CVS trademark (as well as a typographical variation of the CVS HEALTH trademark) in its entirety. Moreover, Complainant’s trademark CVS has been wholly incorporated into the disputed domain name. As section 1.7 of WIPO Overview 3.0 states: “in cases where a domain name incorporates the entirety of a trademark,… the domain name will normally be considered confusingly similar to that mark.” See also, e.g. , PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS) , WIPO Case No. D2003-0696 (“incorporating a trademark in its entirety can be sufficient to establish that a domain name is identical or confusingly similar to a registered trademark”). The requirements of paragraph 4(a)(i) of the Policy have been satisfied. B. Rights or Legitimate Interests There is no evidence in the record to rebut the prima facie case presented by Complainant’s allegations that Respondent has no right or legitimate interests in and to the disputed domain name. The Complainant has not authorized or otherwise sanctioned the registration of the disputed domain name featuring the Complainants marks, the Respondent commonly known by the disputed domain name, nor is the Respondent making any use of the disputed domain name. The requirements of paragraph 4(a)(ii) of the Policy have been satisfied. C. Registered and Used in Bad Faith By Respondent’s actions, it is clear that there has been a purpose to divert web traffic in bad faith due to a confusingly similarity between Complainant’s trademarks and the disputed domain name in violation of paragraph 4(b)(iv) of the Policy. The three major concerns for bad faith here are the fame of Complainant’s trademarks, the passive holding, and the typosquatting. As WIPO Overview 3.0 , section 3.1.4 states: “[T]he mere registration of a domain name that is identical or confusingly similar… to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith.” Complainant has submitted evidence of the fame of its trademark and acknowledgement by other panels. Other panels have also reviewed the issue of copying famous trademarks. As one panel noted: “[i]t is implausible that [Respondent] was unaware of the Complainant when [it] registered the Domain Name given the fame of the Trade Mark.” See Six Continents Hotels v. Lin hongyu, Cheng Qi Lin , WIPO Case No. D2017-2033 . Another panel noted: “it is inconceivable that Respondent chose the contested domain name without knowledge of Complainant’s activities and the name and trademark under which Complainant is doing business.” See Pancil LLC v. Domain Deluxe , WIPO Case No. D2003-1035 . The record also indicates that the related website is inactive. Bad faith also exists under the well-established doctrine of “passive holding” set forth in the landmark case Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003 , given that, Respondent hid its identity behind a privacy service, Respondent has failed to provide any explanation as to its registration of the disputed domain name, and the implausible nature of any good faith use to which the disputed domain name may be put considering its typosquatting nature on Complainant’s distinctive marks. As described by WIPO Overview 3.0 , section 3.3: “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding.” Finally, typosquatting is also evidence of bad faith as well as confusingly similarity. Here the misspelling of “health” is a signal of the bad faith intent to deceive.“[u]nder the… third [bad faith] element[], panels will normally find that employing a misspelling” – such as “the addition” of a single letter – “signals an intention on the part of the respondent… to confuse users seeking or expecting the complainant.” WIPO Overview 3.0 , section 1.9. The requirements of paragraph 4(a)(iii) of the Policy have been satisfied. 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, <cvsheailth.com>, be transferred to Complainant. Clark W. Lackert Sole Panelist Date: December 29, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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