WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ePocrates, Inc. v. Ling Shun Shing
Case No. D2004-0082
1. The Parties
The Complainant is ePocrates, Inc., California, United States of America, represented by Cooley Godward, LLP, United States of America.
The Respondent is Ling Shun Shing, Shanghai, of the Peopleís Republic of China.
2. The Domain Name and Registrar
The disputed domain name <epocates.com> is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 30, 2004. On January 30, 2004, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On January 30, 2004, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and provided the contact details for the administrative, billing, and technical contact. 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 5, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was February 25, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on February 26, 2004.
The Center appointed Hugues G. Richard as the sole panelist in this matter on March 12, 2004. 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 is a corporation from California founded in 1998. The Complainant provides computer software databases related to drug information, drug formularies, infectious diseases and other health-care related topics. It has a network of over 330,000 current subscribers and nearly 1,000,000 registrants located throughout the world. The Complainant has been widely acknowledge for its successes and it has been recognized in several publications such as Forbes, Newsweek, Wall Street Journal and The New York Times, and also by individuals and entities in health care field such as Harvard Medical School and the Journal of the American Medical Association. It has also received awards and accolades from the computer industry. The Complainant owns a web site located at "www.epocrates.com". It contains information about the company, its products, industry solutions, technology, services, pressroom, events and it is also the primary distribution channel for the companyís software.
The Complainant is the owner of numerous registrations for trademarks incorporating the word EPOCRATES in connection with computer software and related services in several countries such as United States of America, European Union and Japan as shown in the registration certificates attached to the Complaint. It has used and continues to use the mark EPOCRATES extensively.
According to the concerned registrarís Whois database, the Respondent is a person domiciled in the Peopleís Republic of China.
5. Partiesí Contentions
B. Mark Identical or Confusingly Similar
The Complainant contends that the <epocates.com> domain name is virtually identical to Complainantís mark EPOCRATES, with the only difference being the deletion of the letter "r". Thus, it contends the two terms are confusingly similar. The Complainant has listed numerous decisions under the Policy which have recognized that this conduct, commonly referred to as "typo squatting", leads to the inference of a virtually identical and/or confusingly similar domain name to the Complainantís trademark under paragraph 4(a)(i) of the Policy.
Rights or Legitimate Interests
The Complainant contends that the Respondent is not a distributor or licensee of the Complainant and indeed has no relationship with him whatsover. The Complainant has never given its permission or consent to Respondent to use Complainantís trademark EPOCRATES, nor any other intellectual property. The Complainant alleges that the Respondent does not own any trademark registration for or application to register the mark EPOCATES and that the Respondent has not been commonly or otherwise known by the name EPOCATES.
Registered and Used in Bad Faith
The Complainant contends that the Respondent has registered the domain name at issue to improperly suggest sponsorship by Complainant of Respondentís web site. It alleges that the Respondent deliberately uses the domain name in an attempt to attract, for commercial gain, Internet users to its web site, by creating a likelihood of confusion with the Complainantís mark as to the source, sponsorship, affiliation, or endorsement of its web site. The Complainant adds that the type of content which the Respondent displays on the its web site, demonstrates that the Respondent is aware of the uses connected with the EPOCRATES trademark. Indeed the Respondent is listing links to what it describes as "popular searches", each of which relates to the Complainantís business of providing downloadable software concerning information regarding medications but which are not associated with the Complainant.
Furthermore, the Complainant contends that misspellings alone, such as that used by Respondent, are sufficient to prove bad faith under paragraph 4(b)(iv) of the Policy, for the reasons listed above. On August 25, 2003, the Complainant sent a letter to the Respondent stating that it believes that the Respondent has registered the <epocates.com> domain name in bad faith and requesting the transfer of this domain name to the Complainant. A copy of the letter is attached to the Complaint. The Respondent has never replied to the Complainant. The Complainant adds that the Respondentís bad faith is proven by his pattern of conduct in repeatedly using otherís misspelled trademarks to attract traffic to his web site. He has listed a few WIPO decisions where the Respondent has lost his domain name for the profit of different complainants.
The Respondent did not reply to the Complainantís contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Complainantís Right in the Mark
The Panel finds that the Complainant has shown sufficient evidence pointing towards the rights it holds in the mark EPOCRATES. The Complainant has proceeded with the registration of the mark in several countries, as shown by the registration certificates for this mark attached to the Complaint. The Complainant has also established that it uses the said trademark. The Panel, proprio motu, has taken upon itself to visit the Complainantís web site located at "www.epocrates.com" and has noted the use of the trademark by the Complainant. The Complainantís rights in the mark have been clearly established especially since the Respondent did not contest these rights.
Mark Identical or Confusingly Similar
The Panel finds the Complainant has shown sufficient evidence that the Respondentís domain name <epocates.com> is confusingly similar to the Complainantís trademark EPOCRATES. The Respondentís domain name is simply a common misspelling of the Complainantís trademark. Numerous decisions under the Policy have already considered that this conduct, commonly referred to as "typo squatting", leads to the inference of a confusingly similar domain name under paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Panel finds that the Respondent should be considered as having no rights or legitimate interests in the domain name <epocates.com>. The Complainant found that the Respondent does not own any trademark registration for or application to register the mark EPOCATES and that the Respondent has not been commonly or otherwise known by the name EPOCATES. In the absence of any effort by the Respondent to rebut the Complainantís contentions, the Panel finds that the Complainant has satisfied its burden to show no rights or legitimate interests of the Respondent in the domain name <epocates.com>.
C. Registered and Used in Bad Faith
The Panel finds that the Respondentís domain name <epocates.com> has been registered and used in bad faith. The Panel finds that in a attempt to attract, for commercial gain, Internet users of the Complainantís web site, the Respondent has created a likelihood of confusion with the Complainantís mark EPOCRATES and domain name <epocrates.com> as to the source, sponsorship, affiliation or endorsement of the Complainantís web site. Furthermore, the Panel has already decided in AltaVista Co. v. Saeid Yomtobian, WIPO Case No. D2000-0937 (October 13, 2000) that misspellings alone, such as that used by Respondent, "are sufficient to prove bad faith under paragraph 4(b)(iv) of the Policy". For these reasons, the Panel finds that the Complainant has satisfied its burden to show that the Respondent has registered and used its domain name in bad faith under paragraph 4(b) of the Policy, especially since the Respondent has never replied to the Complainantís letter nor contested these procedures against him.
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, <epocates.com> be transferred to the Complainant.
Hugues G. Richard
Dated: March 25, 2004