WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cis Bio International v. N.A. Bao Shui Chen
Case No. D2007-1191
1. The Parties
Complainant is Cis Bio International, Gif SurYvette Cedex, France, represented by Brevalex, France.
Respondent is N.A. Bao Shui Chen, Shanghai, China.
2. The Domain Name and Registrar
The disputed domain name <htrf-assays.com> is registered with QuantumPages Technologies Pvt. Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 10, 2007. On August 13, 2007, the Center transmitted by email to QuantumPages Technologies Pvt. Ltd. a request for registrar verification in connection with the domain name at issue. On August 23, 2007, QuantumPages Technologies Pvt. Ltd. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 August 24, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 13, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 17, 2007.
The Center appointed Sandra J. Franklin as the sole panelist in this matter on September 26, 2007. 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
Complainant is an international company specializing in biomedical technologies, including products sold under its mark HTRF. The mark HTRF was first registered by Complainant in the United States of America in January of 2000 and in the European Community in May of 2000. Complainant previously held the domain name <htrf-assays.com>, and currently uses <htrf.com>, <htrf.eu>, and <htrf.assays.eu>. Respondent registered the <htrf-assays.com> domain name when Complainant failed to renew it in due time.
5. Parties’ Contentions
A. Complainant states:
1. Respondent’s <htrf-assays.com> domain name is confusingly similar to Complainant’s HTRF mark.
2. Respondent does not have any rights or legitimate interests in the
<htrf-assays.com> domain name.
3. Respondent registered and used the <htrf-assays.com> domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, WIPO Case No. D2000-0009 (February 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds that Complainant’s United States and European Community registrations of its HTRF mark sufficiently establishes its rights in the mark pursuant to Policy paragraph 4(a)(i). See Fossil, Inc. v. Vilyus, FA 969285 (Nat. Arb. Forum May 29, 2007) (“Under Policy paragraph 4(a)(i), registration of a mark with an appropriate governmental authority such as the USPTO confers rights in that mark on Complainant.”)
Respondent’s <htrf-assays.com> domain name is confusingly similar to Complainant’s HTRF mark pursuant to Policy paragraph 4(a)(i) because the domain name contains the HTRF mark in its entirety, and simply adds the term “assays”, which is descriptive of Complainant’s products. Neither this, nor the addition of the generic top-level domain “.com” is enough to distinguish the domain name from the registered mark. See Ferrari S.p.A. v. Am. Entm’t Group, Inc, WIPO Case No. D2004-0673 (October 10, 2004) (“[T]he addition of the term ‘owner’ [to complainant’s FERRARI mark] is not deemed sufficient to prevent the risk of confusion.”); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum September 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy paragraph 4(a)(i) analysis.”)
The Panel finds that Complainant has satisfied Policy paragraph 4(a)(i).
B. Rights or Legitimate Interests
Complainant states that Respondent is not an agent, licensee or franchisee of Complainant or otherwise authorized to use its HTRF mark. Further, there is no evidence in the record to show that Respondent is commonly known by the <htrf-assays.com> domain name.
Complainant has made a prima facie case in support of its allegations and the burden subsequently shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy paragraph 4(a)(ii). Since Respondent failed to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum October 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum December 30, 2002) (“[B]ased on Respondent’s failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests under Policy paragraph 4(c).
Respondent is using the <htrf-assays.com> domain name to divert Internet users to a website containing a directory of links to competing businesses. Such use of the disputed domain name does not constitute a bona fide offering of goods and services pursuant to Policy paragraph 4(c)(i), or a legitmate noncommercial or fair use of the domain name pursuant to Policy paragaph 4(c)(iii). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum April 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum December 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
The Panel also finds that Respondent is not commonly known by the disputed domain name under Policy paragraph 4(c)(ii). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum April 25, 2007) (“Respondent is not commonly known by the <potterybarn.org> domain name, because the WHOIS information lists ‘Kurt Fees’ as the registrant, and nothing else suggests that respondent is commonly known by the domain name in dispute.”); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum November 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”)
The Panel finds that Complainant has satisfied Policy paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Respondent is not only using the website to divert traffic to sites which compete with Complainant, but is also diverting traffic to pornographic websites, both of which are indications of bad faith.
The Panel infers that Respondent earns click-through revenues for each Internet user that is diverted to the third-party websites. Such use of Complainant’s mark and its goodwill for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy paragraph 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy paragraph 4(b)(iv)).
Furthermore, Respondent has previously been the subject of a UDRP decision where he was found to have registered and used the domain name <dillardsoutlet.com> in bad faith. See Dillard’s, Inc., Dillard’s International, Inc. v. Chen Bao Shui, WIPO Case No. D2007-0520 (May 31, 2007). While this may not be enough to establish a pattern of conduct by Respondent, it is another example showing that Respondent had no compunction in using the trademark of a well-known department store to divert traffic for his own purposes.
The Panel finds that Complainant has satisfied Policy paragraph 4(a)(iii).
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 <htrf-assays.com> be transferred to the Complainant.
Sandra J. Franklin
Dated: October 10, 2007