WIPO Domain Name Decision: D2007-0521

WIPO

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Allos Therapeutics, Inc. v. Kumar Patel

Case No. D2007-0521

1. The Parties

The Complainant is Allos Therapeutics, Inc., Westminster, Colorado, United States of America, represented by Swanson & Bratschun, LLC, United States of America.

The Respondent is Kumar Patel, Wisbech, United Kingdom of Great Britain and Northern Ireland.

2. The Domain Name and Registrar

The disputed domain name <allostherapeutics.com> is registered with OVH.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 4, 2007. On April 10, 2007, the Center transmitted by email to OVH a request for registrar verification in connection with the domain name at issue. On April 13, 2007, OVH transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on April 16, 2007. The Center verified that the Complaint together with the amendment to 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 April 19, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 9, 2007. The Response was filed with the Center on May 10, 2007.

The Center appointed Alistair Payne as the sole panelist in this matter on May 23, 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

The Complainant, Allos Therapeutics, Inc., is a publicly traded biopharmaceutical company which develops products for the treatment of cancer.

The Complainant is the registered owner of the two US trade marks ALLOS and ALLOS THERAPEUTICS, INC. (figurative mark) (together “the ALLOS THERAPEUTICS trade marks”) and the domain name <allos.com>.

The Respondent is the registrant of the Disputed Domain Name.

5. Parties' Contentions

A. Complainant

The Complainant contends that the Disputed Domain Name is confusingly similar to either its registered word mark ALLOS, its device mark ALLOS THERAPEUTICS.INC or its corporate and trade name “Allos Therapeutics Inc.”.

The Complainant is a publicly traded company on the NASDAQ exchange and considers that its marks and name are famous world-wide with consumers and also within the pharmaceutical and investment sectors. The Complainant maintains that the Disputed Domain Name is similar both visually, orally and in meaning to its trade marks and name and that the omission of “inc.” and the inclusion of the generic top level domain name “.com” does not detract from this similarity.

On January 19, 2006, a letter was sent by the Complainant to notify the Respondent of its prior rights in the Disputed Domain Name. This letter was confirmed as sent on January 23, 2006 but no response was received. The Complainant asserts that this letter provided the Respondent with actual notice of the existence of the Complainant’s prior rights.

The Complainant contends that the Respondent has no legitimate rights or interest in the Disputed Domain Name as it is not commonly known by any of the ALLOS THERAPEUTICS trade marks. The Complainant confirms that it has given the Respondent no permission to use the Disputed Domain Name.

The Complainant submits that the Disputed Domain Name is being used to intentionally re-direct Internet users to a website where the Complainant’s logo is displayed, thus creating the impression that the Complainant is connected with the Disputed Domain Name. The Complainant further believes that a disclaimer contained on the website which states that it is not connected with the Complainant is displayed in such a manner as to mislead the public as it is not clearly visible upon entering the website. It is shown in small font at the end of the homepage and the Complainant maintains that the homepage will have been fully viewed before the disclaimer is discovered. The Complainant believes that this is an attempt to confuse consumers into believing that the Disputed Domain Name and the Complainant are affiliated. The Complainant cites the case of Abbott Laboratories v. Kumar Patel, (FA 1740337 Nat. Arb. Forum, August 15, 2006) in which the panel held that the use of a disclaimer will not protect a respondent where a complainant’s entire trade mark is used as the disputed domain name.

The Complainant maintains that the Respondent’s assertion that the Disputed Domain Name will be used as a criticism site for the Complainant’s products and services is not genuine. At the date of the Complaint the Disputed Domain Name did not resolve to a site at which a user could actually criticise the services or products of the Complainant and the Complainant further maintains that this had been the case for a period of 15 months prior to the Complaint being made.

The Complainant asserts that the Respondent is a “serial cybersquatter” who has hijacked the names of other well-known pharmaceutical companies in the past. The Complainant cites 6 cases which feature the Respondent as the registrant of domain names which were all transferred to the relevant complainant in the dispute. The Complainant also provides a list of 13 domain names for which the Respondent is the registrant. Well-known pharmaceutical companies are used as the names for all these domain names. Two such examples are <abbott-laboratories.com> and <king-pharmaceuticals.com>. The Complainant believes that this demonstrates a pattern on the Respondent’s behalf of registering domain names that are similar to known trade marks and thus provides evidence of bad faith.

B. Respondent

The Respondent asserts that the Complainant attempted to purchase the Disputed Domain Name from the Respondent on March 26, 2007 via a fictitious email address. The Respondent was not willing to sell at that time and believes that the Complainant is now attempting to reverse domain name hijack the Disputed Domain Name.

6. Discussion and Findings

If the Complainant is to succeed, it must prove each of the three elements referred to in paragraph 4(a) of the Policy, namely that:

i. the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

ii. the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and

iii. the Disputed Domain Name has been registered and is being used in bad faith.

The Panel will proceed to establish whether the Complainant has discharged the burden of proof in respect of each of the three elements referred to in paragraph 4(a) of the Policy.

A. Identical or Confusingly Similar

The Disputed Domain Name is not identical to either of the Complainant’s registered trade marks. The Panel also does not consider that the Disputed Domain Name is confusingly similar to ALLOS as the Disputed Domain Name is distinguished by the addition of the word “therapeutics”.

The Disputed Domain Name is in the Panel’s view arguably confusingly similar to the Complainant’s combined word/device mark which includes in prominent lettering the “Allos Therapeutics” name, or in the alternative to the Complainant’s corporate name “Allos Therapeutics, Inc.” which has been used by the Complainant since July 17, 1996 and is a NASDAQ listed company name. The Panel accepts that the Complainant owns common law trade mark rights in its corporate name and consistent with Spirit Airlines, Inc. v. Sepia, WIPO Case No. D2002-0443, that the inclusion of the corporate identifier “Inc.” does not prevent a finding of confusing similarity.

For completeness the Panel notes that it is a well established rule that the inclusion of the generic top level domain name “.com” is not taken into account when evaluating similarity. The Panel notes the cases of GE Capital Finance Australasia Pty v. Dental Finance Services Pty Limited, WIPO Case No. DAU2004-0007 and A & F Trademark, Inc., Abercrombie & Fitch Stores, Inc., v Party Night Inc., WIPO Case No. D2003-0172, in this regard.

Based on the above, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s ALLOS THERAPEUTICS, INC. (figurative mark) or in the alternative to its corporate name and that paragraph 4(a)(i) of the Policy has been satisfied.

B. Rights or Legitimate Interests

The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name as required under paragraph 4(a)(ii) of the Policy.

The Panel notes that the Respondent has provided no evidence to support a finding that it has been commonly known as the Dispute Domain Name, or that it intends to use the Disputed Domain Name for a bona fide offering of goods and services. In particular the Disputed Domain Name does not resolve to an active website and there is no concrete evidence that the Disputed Domain Name is being used as a criticism site.

The page contained at the Disputed Domain Name states that it will be used “in time” as “the focal point for people to share their bad experiences” in relation to the Complainant’s services or products. This is the only evidence available to show that the Respondent intends to use the Disputed Domain Name as a legitimate criticism site. The Panel finds that this alone cannot lead to a finding that the Respondent has a legitimate interest in the Disputed Domain Name. Similarly, in Gilead Sciences, Inc. v. Kumar Patel, WIPO Case No. D2005-0831, the panel stated that the respondent could not have a right or legitimate interest if the alleged criticism site was not “developed or active” before the dispute arose.

The disclaimer displayed on the website with the Disputed Domain Name is not indicative and does not on its own legitimise the Respondent’s activities as being for a legitimate or non-commercial fair use (see the similar case of Abbott Laboratories v. Kumar Patel, (FA 1740337 Nat. Arb. Forum, August 15, 2006).

The Panel finds that the Complainant fulfills Paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Under Paragraph 4(b)(ii) of the Policy it shall be considered evidence of the bad faith registration and use of a domain name if the domain name was registered in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the domain name registrant has engaged in a pattern of such conduct.

The Complainant has provided the Panel with the results of a search performed on March 15, 2007 in the name of the Respondent which returned 181 different domain names. The Complainant has inserted a selection of 13 of these registrations into the Complaint all being domain names of well-known pharmaceutical companies.

The Complainant also cites 6 domain name decisions which feature the Respondent as the registrant of domain names which were identical or confusingly similar to a complainant’s trade mark and were all transferred to the relevant complainant in the dispute. These decisions are Gilead Sciences, Inc. v. Kumar Patel, WIPO Case No. D2005-0831; Cyveillance, Inc. v. Kumar Patel, WIPO Case No. D2006-0346; Eastman Chemical Company v. Kumar Patel, No. FA0507000524752 Nat. Arb. Forum, September 7, 2005; Endo Pharmaceuticals Inc., v. Kumar Patel, No. FA0602000642131 Nat. Arb. Forum, April 3, 2006; Auxilium Pharmaceuticals, Inc. v. Kumar Patel, No. FA0602000642141 Nat. Arb. Forum, April 6, 2006; and Abbott Laboratories v. Kumar Patel, No. FA1740337 Nat. Arb. Forum, August 15, 2006.

In view of this evidence of the Respondent’s activities the Panel infers that the Respondent has registered the Disputed Domain Name in order to prevent the Complainant from registering it as a domain name. Based on the Respondent’s pattern of past conduct of multiple domain name registrations it appears to the Panel that the Respondent is a serial cybersquatter. In addition to this, the Respondent has failed to provide sufficient evidence in this instance to persuade the Panel of the Respondent’s stated intention to create a legitimate criticism site.

Accordingly, the Panel finds that paragraph 4(b)(ii) of the Policy is satisfied and that the Respondent has registered and used the Disputed Domain Name in bad faith under paragraph 4(a)(iii) of the Policy.

7. Decision

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 <allostherapeutics.com> be transferred to the Complainant.

Alistair Payne
Sole Panelist

Date: June 11, 2007