WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Genentech, Inc. v. Junwen Peng
Case No. D2012-2202
1. The Parties
The Complainant is Genentech, Inc. of South San Francisco, California, United States of America, represented by F. Hoffmann-La Roche AG, Switzerland.
The Respondent is Junwen Peng of Hubei, China.
2. The Domain Name and Registrar
The disputed domain name <avastinb.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 7, 2012. On November 8, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 8, 2012, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 13, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was December 3, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 4, 2012.
The Center appointed Erica Aoki as the sole panelist in this matter on December 11, 2012. 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.
The language of the administrative proceeding is English.
4. Factual Background
The Complainant is engaged in research and development of pharmaceutical and diagnostic products and is a member of the Roche Group.
The Complainant’s mark AVASTIN is registered in the United States Patent and Trademark Office since June 29, 2001 and in other countries and Complainant registered the domain name <avastin.com> on March 15, 2001.
The disputed domain name <avastinb.com> was registered on October 27, 2012.
5. Parties’ Contentions
Avastin is a cancer related drug which sales exceeded hundreds of millions of dollars.
The Complainant contends that the disputed domain name <avastinb.com> incorporates the Complainant’s trademark AVASTIN in its entirety with addition of letter “b” at the end of the word which do not make sufficient distinction with Complainant’s trademark.
The Respondent is using the disputed domain name to direct Internet users to a pharmacy on-line website which offers Avastin and other drugs.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In this Panel’s view, the Complainant has satisfied the requirements specified under paragraph 4(a) of the Policy:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in respect of which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Based on the facts presented by the Complainant, this Panel finds that the disputed domain name is confusingly similar to a mark in which the Complainant has rights under paragraph 4(a)(i) of the Policy. The Panel finds that there is no doubt that the disputed domain name is confusing similar to the Complainant’s registered trademark, as the disputed domain name includes the Complainant’s AVASTIN marks in full.
B. Rights or Legitimate Interests
The Panel finds the following on the record in these Policy proceedings:
- The Respondent is in default and thus has made no affirmative attempt to show any rights or legitimate interests in the disputed domain name;
- The Policy indicates that a registrant may have a right or legitimate interest in a domain name if it was making use of the domain name in connection with a bona fide offering of goods or services prior to notice of the dispute;
- The Respondent’s knowledge of the Complainant’s right is presumed since it is selling Complainant’s products and its competitor’s products on its website;
- The Respondent is in no way connected with the Complainant and has no authorization to use any of the Complainant’s trademarks; and
- There is no evidence that the Respondent is or was commonly known by the disputed domain name as an individual, business or other organization.
Thus, in this Panel’s view, the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. There is no evidence of the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.
Further, the Panel notes that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use activity.
The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name, under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith under paragraph 4(b)(iv) of the Policy and that the Respondent is using the disputed domain name intentionally to attempt to attract, for commercial gain, Internet users to the Respondent’s website or other online location by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s site or of a product or service offered on the Respondent’s site.
In this Panel’s view, there is no doubt that the Respondent was aware of the Complainant’s rights on AVASTIN mark at the time the disputed domain name was registered, indicating that such registration was made in bad faith.
Based on that evidence, the Panel finds that the Respondent registered the disputed domain name with the intention of illegally obtaining benefits and harming the Complainant’s reputation in the market.
Also, based on the undisputed allegations, the registration and use of the disputed domain name by the Respondent is in order to divert Internet users seeking information about the Complainant.
Accordingly, and as also supported by the Panel’s findings above under the third element of the Policy, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith under paragraph 4(a)(iii) of the Policy.
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 <avastinb.com> be transferred to the Complainant.
Date: January 2, 2013