{
    "case_number": "CAC-UDRP-100898",
    "time_of_filling": "2014-12-16 14:02:55",
    "domain_names": [
        "PROAIRALBUTEROL.COM"
    ],
    "case_administrator": "Lada Válková (Case admin)",
    "complainant": [
        "TEVA RESPIRATORY, LLC"
    ],
    "complainant_representative": "Matkowsky Law PC",
    "respondent": [
        "Bogdan Orlovskiy"
    ],
    "respondent_representative": null,
    "factual_background": "FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:\r\n\r\nThe Complainant is the U.S.-based division of Teva Pharmaceutical Industries Ltd, a global pharmaceutical company with headquarters in Israel and a generic drug maker, with a substantial product portfolio and a direct presence in approximately 60 countries employing approximately 45,000 people around the world with some $20.3 billion in net revenues in 2013.\r\n\r\nThe Complainant's PROAIR HFA is a leading inhaler for asthma with a significant market share in the U.S. market. According to IMS Health's, National Prescription Audit, PROAIR was first in the albuterol category (52.9% Total Prescription share based on an IMS Health, National Prescription Audit, for the 12 months ending March 2014).  PROAIR revenues amounted to $345 million in the first quarter of 2014 (IMS National Sales Perspectives, for the quarter ending March 2014).  \r\n\r\nThe Complainant says it owns numerous registrations for the PROAIR mark but relies here on U.S. Reg. No. 3,166,297.\r\n \r\nThe Complainant asserts the Disputed Domain Name is confusingly similar to PROAIR and says the Complainant has satisfied paragraph 4(a)(i) of the Policy because the Disputed Domain Name incorporates the mark in its entirety and merely adds the descriptive term ‘albuterol’ citing CAC Case No. 100832.  Albuterol sulfate is the active ingredient of PROAIR HFA Inhalation Aerosol. \r\n\r\nThe Complainant claims the risk of confusion should be considered with care because the goods covered by the registration are pharmaceuticals, and the likelihood of confusion could cause death or physical harm, citing F. Hoffman-La Roche AG v. Transure Enterprise Ltd. and Above.com Domain Privacy, WIPO Case No. D2009-1729.\r\n\r\nThe Complainant asserts its exclusive rights to the PROAIR mark for use on or in connection with inhalers filled with pharmaceutical preparations for the treatment of respiratory disease, and says no license, permission, authorization or consent was granted to the Respondent to use PROAIR in the Disputed Domain Name.  It claims the Respondent registered and is using the Disputed Domain Name to drive traffic to rogue online pharmacies for commercial gain and that it does this by creating a likelihood of confusion with the Complainant’s trademarks as to source, sponsorship, affiliation, or endorsement of rogue online pharmacies. It complains the Disputed Domain Name does not make clear that it pertains to websites unconnected with the Complainant (there is no disclaimer on the sites complained of). The Complainant alleges the Respondent uses the Disputed Domain Name to advertise the online pharmacies and their products. It says none of the above constitutes a legitimate non-commercial or fair use under the Policy, citing CAC Case No. 100833. \r\n\r\nIn particular, the Complainant alleges the Disputed Domain Name is being used as a mail server and to host a “feeder” site to exploit PROAIR to drive traffic to rogue online pharmacies. The Complainant alleges the Respondent is engaged in criminal activity and that to conceal such criminal activity, the Respondent displays a spoofed 503 error while the Respondent sends commercial email messages from the Disputed Domain Name to drive sales to these pharmacies. In particular, it says three online pharmacies are advertised and promoted; “SKY Pharmacy,” “Canadian Health&Care Mall,” and “Trusted Tablets.”  It complains that the Respondent advertises competitive albuterols at these sites. It notes that that the sites advertise that no prescription is required and that shipment is worldwide.  It alleges that some of the sites have counterfeit government seals and Visa and Mastercard logos.  The Complainant alleges \"this website is “rogue” by industry standards.\"  The Complainant goes on to allege this online pharmacy belongs to a \"criminal network\" (the Panel does not set out these claims here) but the Complainant makes allegations about various sites including www.trustedgenerics-online.com.  It says the Respondent’s registrant email address is associated with other domains and the Respondent has a pattern or practice of trying to exploit pharmaceutical trade marks to drive traffic to rogue online pharmacies.\r\n\r\nThe Complainant alleges the Respondent cannot satisfy the requirements of Oki Data Americas Inc v. ASD Inc, WIPO Case No. D2001-0903 so as to claim a right or legitimate interest. Cephalon v. Jack n Oliver, CAC Case No. 100835 (“[E]ven if the Oki Data conditions were potentially of relevance, the fact that the relevant websites sell other products than the genuine products of the Complainant, makes it clear that those conditions could not be satisfied.”).  It says the Respondent registered and uses the Disputed Domain Name to benefit from the reputation of the mark and illegitimately trade on it for commercial gain and profit. It says the Respondent must have been aware of PROAIR when registering the Disputed Domain Name. Therefore, the requirement of bad faith registration and use of the Disputed Domain Name pursuant to paragraph 4(a)(iii) of the Policy has also been met, citing CAC Case No. 100833.  ",
    "other_legal_proceedings": "The Panel is not aware of other proceedings. ",
    "no_response_filed": "NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.",
    "rights": "The Complainant has, to the satisfaction of the Panel, shown the Domain Name is identical or confusingly similar to a trademark or service mark in which the complainant has rights (within the meaning of paragraph 4(a)(i)of the Policy).",
    "no_rights_or_legitimate_interests": "The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the Domain Name (within the meaning of paragraph 4(a)(ii)of the Policy).",
    "bad_faith": "The Complainant has, to the satisfaction of the Panel, shown the Domain Name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii)of the Policy).",
    "procedural_factors": "On 20 January 2015 the Panel requested supplemental information from the Complainant regarding clarification of the relationship between the current registered proprietor of the US registered trade mark No.3,166,297, IVAX Labs. Inc., and the Complainant pursuant to paragraph 12 of the Rules. The Complainant provided the information on the same day.\r\n\r\nFurthermore, the Panel undertook limited factual research into matters of public record it deemed necessary (including visiting various websites referred to in the Complaint in order to obtain more information about the Respondent and use of the Disputed Domain Name).\r\n\r\nThe Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.",
    "decision": "Accepted",
    "panelists": [
        "Victoria McEvedy"
    ],
    "date_of_panel_decision": "2015-01-21 00:00:00",
    "informal_english_translation": "The Complainant (formerly known as IVAX Labs. Inc.) relies on its registration of the PROAIR word mark, U.S. Reg. No. 3,166,297 covering inhalers filled with pharmaceutical preparations for the treatment of respiratory disease, in Int. Class 5 and US classes 6,18,44,46,51 and 52, registered on 31 October 2006, with a priority filing date of 17 December 2004.  It also relies on its use in trade in the US.  ",
    "decision_domains": {
        "PROAIRALBUTEROL.COM": "TRANSFERRED"
    },
    "panelist": null,
    "panellists_text": null
}