WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

NG Biotech v. Otumba David

Case No. D2021-0175

1. The Parties

The Complainant is NG Biotech, France, represented by Bignon Lebray, France.

The Respondent is Otumba David, United States of America (“United States”).

2. The Domain Name and Registrar

The disputed domain name <ngbiotechs.com> (the “Disputed Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 21, 2021. On January 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On January 23, 2021, the Registrar 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” 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 the Respondent of the Complaint, and the proceedings commenced on February 17, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 9, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 1, 2021.

The Center appointed Pablo A. Palazzi as the sole panelist in this matter on April 13, 2021. 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 French biotech company developing and manufacturing novel in vitro diagnostic tools for therapy monitoring. Currently, the Complainant is one of the French companies in charge of COVID testing.

The Complainant owns the following trademarks registrations for the term NG BIOTECH, among others:

- NG BIOTECH European Union trademark No. 010990711 registered on November 21, 2012,
- NG BIOTECH International trademark protected No. 1496516 registered on September 19, 2019; and
- NG BIOTECH United States trademark registration No. 6134306 registered on August 25, 2020.

In addition, the Complainant is the owner of the domain names <ngbiotech.com> and <ngbiotech.fr>.

The Respondent registered the Disputed Domain Name on May 6, 2020. The Disputed Domain Name resolves to an inactive webpage.

5. Parties’ Contentions

A. Complainant

The Complainant contentions can be summarized as follows:

Identical or confusingly similar

The Complainant contends that the Disputed Domain Name <ngbiotechs.com> integrates entirely the Complainant┬┤s trademark NG BIOTECH, to which the letter “s” has only been added in order to slightly differ from the Complainant’s original domain name, which is a typical case of “typosquatting”.

Rights and legitimate interests

The Complainant states that there is no evidence of the Respondent’s use of, or demonstrable preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services, as the Disputed Domain Name does not currently lead to any webpage.

In addition, the Respondent has not been commonly known by the Disputed Domain Name, nor has acquired trademark or service mark rights in this respect.

Finally, the Complainant alleges that the Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name.

Registration and use in bad faith

The Complainant argues that is improbable that the Respondent would have registered randomly and unintentionally the Disputed Domain Name <ngbiotechs.com>, which is confusingly similar to the Complainant’s trademarks.

The Complainant further states that the Respondent is responsible for a major fraud which occurred in September 2020, where the Complainant was the victim of a hacking in which documents exchanged by email between the Complainant and a client were intercepted. Among other things, the hacker sent an email to a client of the Complainant using an email address from the Disputed Domain Name.

Consequently, such registration and use is obviously motivated by commercial gain through fraudulent and illegal methods.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy lists the three elements which the Complainant must satisfy with respect to the Disputed Domain Name:

“(i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in the which the Complainant has rights;

(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.”

A. Identical or Confusingly Similar

The Complainant is the owner of the NG BIOTECH trademark as evidenced by its trademark registrations. Based on the evidence submitted, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark NG BIOTECH. The addition of the letter “s” to the word “tech” represents a misspelling that does not prevent a finding of confusing similarity between then Disputed Domain Name and the Complainant’s trademark.

Moreover, the misspelling is also hardly noticeable and results in a very minor modification of the Complainant’s trademark, being a common mistake that any Internet user can make. This is a clear example of typosquatting. As section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states:

“A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.(...) Examples of such typos include (i) adjacent keyboard letters, (ii) substitution of similar-appearing characters (e.g., upper vs lower-case letters or numbers used to look like letters), (iii) the use of different letters that appear similar in different fonts, (iv) the use of non-Latin internationalized or accented characters,(v) the inversion of letters and numbers, or (vi) the addition or interspersion of other terms or numbers.”

Therefore, the Panel finds that the Complainant has satisfied the first requirement of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name:

“(i) before any notice to you of the dispute, your use of, demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service at issue.”

There is no evidence of the existence of any of those rights or legitimate interests. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the NG BIOTECH trademark.

The Respondent has failed to show that it has acquired any rights with respect to the Disputed Domain Name or that the Disputed Domain Name is used in connection with a bona fide offering of goods and services.

The Respondent had the opportunity to demonstrate its rights or legitimate interests, but it did not reply to the Complainant’s contentions.

As such, this Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The fact that the Disputed Domain Name reproduces the Complainant’s trademark establishes that the Respondent was well aware of the Complainant’s trademark when registering the Disputed Domain Name.

The Disputed Domain Name is nearly identical to the Complainant’s trademark and domain name <ngbiotech.com> and thereby deliberately attempts to disrupt the Complainant’s business.

Moreover, the Complainant has argued that in September 2020, the Complainant was victim of a fraud using an email address from the Disputed Domain Name. This fact shows that the Respondent was well aware of the Complainant and its business and trademark when it registered the Disputed Domain Name and also that the Respondent was using the Disputed domain name in bad faith.

The Disputed Domain Name is currently inactive. As it has been the case in several previous UDRP cases, the fact that the Disputed Domain Name is currently inactive does not prevent a finding of bad faith use and does not change the Panel’s views in this respect.

In addition, the Respondent did not submit any explanation or possible justification for its use of the Disputed Domain Name.

Due to this conduct, it is obvious that the Respondent intentionally created likelihood of confusion with the Complainant’s trademarks as described by paragraph 4(b)(iv) of the Policy.

Therefore, taking all the circumstances into account and for all the above reasons, the Panel finds that the Respondent has registered and used the Disputed Domain Name in bad faith.

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 Doman Name, <ngbiotechs.com> be transferred to the Complainant.

Pablo A. Palazzi
Sole Panelist
Date: April 27, 2021