Ferring B.V. v Bambi Logan
WIPO Case No. D2024-1829
•28-06-2024
| ARBITRATION AND MEDIATION CENTER |
ADMINISTRATIVE PANEL DECISION
Ferring B.V. v. Bambi Logan
Case No. D2024-1829
1. The Parties
Complainant is Ferring B.V., Netherlands (Kingdom of The), represented by Jacobacci Avocats, France.
Respondent is Bambi Logan, United States of America (“United States”).
2. The Domain Name and Registrar
The disputed domain name is <ferrlng.com> which is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 30, 2024. On May 1, 2024, the Center transmitted by email to the Registrar a request for registrar verif ication in connection with the disputed domain name. On May 1, 2024, the Registrar transmitted by email to the Center its verif ication response disclosing registrant and contact information for the disputed domain name which differed from those in the Complaint (Redacted for Privacy, Privacy service provided by Withheld for Privacy ehf). The Center sent an email communication to Complainant on May 2, 2024, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant f iled an amended Complaint on May 7, 2024.
The Center verif ied that the Complaint together with the amended Complaint satisf ied 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 May 8, 2024. In accordance with the Rules, paragraph 5, the due date for Response was May 28, 2024. Respondent did not submit any response. The Center, however, received an email communication from a third party on May 13, 2024, stating that it had received at its of f ice street address[1] the Written Notice of the proceeding, addressed to Bambi Logan, but that there was no individual named Bambi Logan associated to that third party. The Center notif ied the Commencement of Panel Appointment Process on May 29, 2024.
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The Center appointed Gerardo Saavedra as the sole panelist in this matter on June 14, 2024. The Panel f inds 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.
Preliminary Issue: Proper Respondent
Pursuant to paragraph 1 of the Rules “Respondent means the holder of a domain-name registration against which a complaint is initiated”. The original Complaint named “Redacted for Privacy, Privacy service provided by Withheld for Privacy ehf” as Respondent, as it appeared as registrant in the available WhoIs record. At the Center’s request, the Registrar sent its verification response disclosing Bambi Logan as the registrant of the disputed domain name, and thus on May 7, 2024, Complainant filed an amended Complaint naming Bambi Logan as additional Respondent. Since the real underlying registrant has been promptly disclosed, the Panel decides to only have Bambi Logan as the proper Respondent.
4. Factual Background
Complainant is the parent company of the Ferring biopharmaceutical group which has multinational presence.
Complainant has rights over the FERRING mark for which it holds, among others, Iceland registration No. 15/1997, registered on January 24, 1997, in class 5; European Union registration No. 004030193, registered on September 11, 2006, in classes 5 and 10; and United States registration No. 3662266, registered on August 4, 2009, in class 5.
Complainant appears as the registrant of the domain names <ferring.com> created on October 20, 1996; <ferringusa.com> created on March 25, 1998; and <ferring.eu> created on March 13, 2006, among others.
The disputed domain name was registered on January 4, 2024. Before the Complaint was filed, the disputed domain name resolved to a hosting landing web page showing apparent sponsored links, such as “Ferr”, “Fournisseur Gaz en Ligne”, and “Mise en Service Électricité et Gaz”. By the time the amended Complaint was f iled, the disputed domain name did not resolve to an active website.
5. Parties’ Contentions
A. Complainant
Complainant contends that it has satisfied each of the elements required under the Policy and requests that the disputed domain name be transferred to Complainant. Complainant’s assertions may be summarized as follows.
Complainant’s Ferring group, leader in reproductive medicine and women’s health and in specialty areas within gastroenterology and urology, was founded 74 years ago and has an extensive global presence, with subsidiaries operating nearly in more than 50 countries, and products marketed in more than 100 countries under the FERRING and FERRING PHARMACEUTICALS marks.
Complainant is the owner of a number of mark registrations / applications for FERRING in numerous countries, and also has a strong Internet presence through its large portfolio of domain names using the FERRING mark. The FERRING mark benefits from a strong reputation worldwide, which has already been acknowledged in previous UDRP decisions.
The disputed domain name is confusingly similar to Complainant’s FERRING mark. The disputed domain name consists of Complainant’s mark, with the sole substitution of the letter “i” by the letter “l”, which is a
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typical case of typosquatting. Such misspelling is not suf f icient to change the overall visual impression created by the disputed domain name which could be mistaken for being identical to Complainant’s mark.
Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant has not authorized any third party to register the disputed domain name or to use its FERRING mark or any variations thereof as part of a domain name.
Respondent is not commonly known by the disputed domain name insofar as it has not developed any of fering of goods or services through the disputed domain name. Respondent’s name does not ref lect any right on the disputed domain name or on FERRING. As disclosed by the Registrar, Respondent’s email address does not show any link with Respondent’s name, and Respondent’s phone number ref lects an area code corresponding to a State different to that where Respondent is domiciled. All that cannot exclude that the data provided by Respondent does not reflect its real identity and contact details, and thus Respondent is devoid of any right or legitimate interest in respect of the disputed domain name.
Through May 1, 2024, the disputed domain name directed visitors to a parking web page showing sponsored links, and most likely Respondent earned pay-per-click revenues in relation to such sponsored links. Such use does not confer rights or legitimate interests arising from a bona f ide of fering of goods or services or f rom a legitimate noncommercial or fair use. Currently the disputed domain name does not display any page or web site, conf irming that Respondent had no intention to legitimately use it.
The disputed domain name was registered and is being used in bad faith. Given the use and reputation throughout the world of Complainant’s FERRING mark, Respondent could not have ignored the existence of Complainant’s prior rights when registering the disputed domain name. This is a typical case of
typosquatting insofar as the disputed domain name creates a virtually identical and/or confusingly similar mark to Complainant’s. Given the typosquatting nature of the disputed domain name, Respondent had knowledge of Complainant’s mark and prior rights.
Respondent’s bad faith is further supported by: (i) Respondent’s use of a privacy service in order to hide its identity; (ii) the lack of any reply by Respondent to the cease-and-desist letter Complainant sent on April 8, 2024, and the reminder thereof sent on April 12, 2024; [2] (iii) the prior use of the disputed domain name to display a parking web page, which is a clear indicator of targeting for commercial gain, even if the sponsored links had been posted programmatically by a third party.
Currently, the disputed domain name does not resolve to an active web site. However, any plausible active use of the disputed domain name would be illegitimate and would result in an inf ringement of Complainant’s marks and reputation. Furthermore, email servers are activated for the disputed domain name, which means that potential emails can be distributed to impersonate Complainant for scam purposes (Complainant having been in the past the subject of typosquatting and such kind of f raudulent scamming behaviour).
B. Respondent
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
The lack of response from Respondent does not automatically result in a favorable decision for Complainant (see section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition
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WIPO Overview 3.0
(“”)). The burden for Complainant, under paragraph 4(a) of the Policy, is to show: (i) that domain name; and (iii) the disputed domain name has been registered and is being used in bad faith.
the disputed domain name is identical or confusingly similar to a trademark or service mark in which
A. Identical or Confusingly Similar
The Panel f inds Complainant has shown rights in respect of a trademark or service mark for the purposes of the Policy (WIPO Overview 3.0, section 1.2.1).
The disputed domain name almost identically reproduces the FERRING mark. The Panel f inds the mark is recognizable within the disputed domain name and that the replacement of the “i” letter with the “l” letter in the disputed domain name does not avoid a finding of confusing similarity between them for the purposes of the Policy (WIPO Overview 3.0, sections 1.7, 1.9 and 1.11.1).
The Panel f inds the f irst element of the Policy has been established.
B. Rights or Legitimate Interests
Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the difficult task of “proving a negative”, requiring information that is of ten primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (although the burden of proof always remains on the complainant). If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisf ied the second element (WIPO Overview 3.0,
section 2.1).
Paragraph 4(c) of the Policy provides a list of circumstances in which Respondent may demonstrate rights or legitimate interests in the disputed domain name. There is no evidence in the case file of any of those, or of any other circumstances giving rise to a possible right to or legitimate interest in the disputed domain name by Respondent, but rather the opposite may be validly inferred.
The nature of the disputed domain name, confusingly similar to Complainant’s mark, represents a serious risk that Internet users will not notice the subtle misspelling as it may mistakenly be seen as ef fectively impersonating or suggesting some connection to Complainant. In the Panel’s view, the typosquatting nature of the disputed domain name, which almost identically reflects Complainant’s name and mark, cannot confer rights or legitimate interests upon Respondent. [3] Further, the record shows that Respondent provided inaccurate contact details to the Registrar, which the Panel considers an indication of Respondent’s lack of legitimacy.
The Panel f inds Complainant has established a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Respondent has not rebutted Complainant’s prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain name such as those enumerated in the Policy or otherwise.
Based on the available record, the Panel f inds the second element of the Policy has been established.
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C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out a list of non-exhaustive circumstances that may indicate that a domain name was registered and used in bad faith, but other circumstances may be relevant in assessing whether a respondent’s registration and use of a domain name is in bad faith (WIPO Overview 3.0, section 3.2.1).
Having reviewed the case file, the Panel finds that Respondent’s registration and use of the disputed domain name constitutes bad faith under the Policy. The overall evidence indicates that Respondent’s choice of the disputed domain name was deliberate for its substantial similarity with, and with the likely intention to benef it f rom, Complainant’s name and mark and potentially disrupt Complainant’s business or deceive third parties, which denotes bad faith. The disputed domain name reflects Complainant’s prior registered FERRING mark in its entirety, albeit with just a minor typographical error variation (the replacement of the letter “i” with the letter “l”), a classic case of typosquatting which has been deemed as a strong indicative of bad faith under a number of UDRP cases.[4]
Although the disputed domain name no longer resolves to an active website, it seems to the Panel that there is no basis in the case f ile to conceive a legitimate use of the disputed domain name by Respondent. [5] The confusing similarity of the disputed domain name with Complainant’s name and mark, coupled with the fact that the disputed domain name is configured to send emails, makes the Panel consider that the disputed domain name may potentially be used for f raudulent activities. [6] Respondent’s use of a privacy service to hide its name and contact details, along with Respondent’s use of a street address and phone number that, based on the evidence in the file, seem to indicate that Respondent provided inaccurate contact details, simply reinforce such consideration.
Based on the available record, the Panel f inds that Complainant has established the third element of the
Policy.
[3]See Belmont Village, L.P. v. Name Redacted, WIPO Case No. D2022-4895: “typosquatting is evidence of a lack of rights or legitimate
[5]See Ferrari S.p.A. v. Ms. Lee Joohee (or Joo-Hee), WIPO Case No. D2003-0882: “Respondent has provided no evidence or
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 <ferrlng.com> be transferred to Complainant.
/Gerardo Saavedra/
Gerardo Saavedra
Sole Panelist
Date: June 28, 2024
interests in the Disputed Domain Name.”
of relevant bad faith registration and use.” See also Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568:
“Typosquatting is virtually per se registration and use in bad faith.”
suggestion of a possible legitimate use of the Domain Name. Thus, in the words of Telstra, it is not possible to conceive of any
plausible actual or contemplated active use of the Domain Name by the Respondent that would not be illegitimate.” See also WIPO
Overview 3.0, section 3.3.
Electronico, WIPO Case No. D2021-3924: “the mere presence of mail servers and SPF records represents a severe risk of phishing or other fraudulent and abusive activities [...] it is rather difficult to imagine that mail server attached to disputed domain name would be used for any good faith purposes.” See also WIPO Overview 3.0, section 3.4.
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