WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Regeneus Ltd. v. Nikolas Oliver Mijich
Case No. D2014-0421
1. The Parties
The Complainant is Regeneus Ltd. of Pymble, New South Wales, Australia, represented internally.
The Respondent is Nikolas Oliver Mijich of Elizabeth Bay, New South Wales, Australia.
2. The Domain Name and Registrar
The disputed domain name <hiqcell.com> is registered with Crazy Domains FZ-LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 18, 2014. On March 19, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 20, 2014 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 March 27, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 16, 2014. The Respondent did not submit any timely response. Accordingly, the Center notified the Respondent’s default on April 22, 2014. The Respondent then contacted the Center on April 23, 2014 and May 1, 2014, but did not submit any substantive response to the Complaint.
The Center appointed David Stone as the sole panelist in this matter on April 29, 2014. 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 an Australian company based in Sydney. According to its website “www.regeneus.com” the Complainant’s business focuses on regenerative medicine and the development of cell therapies for humans and animals.
The Complainant is the owner of Australian trade mark HIQCELL (Australian trade mark 1456294) in Nice class 44, for “medical services; medical advisory services; provision of information relating to medical pharmaceuticals and treatments”. This trade mark was lodged on October 26, 2011, and is registered from that date. The acceptance of the trade mark was advertised on February 16, 2012 and the registration was advertised on May 31, 2012.
The Complainant is also the owner of the international trade mark HIQCELL (International Trade Mark Registration 1104864), in the same class for the same goods and services. The date of the International Trade Mark Registration is December 13, 2011.
The Respondent is an individual with an address in Elizabeth Bay.
The disputed domain name <hiqcell.com> was registered with the Registrar by the Respondent on June 17, 2012. The disputed domain name does not currently host an active website.
5. Parties’ Contentions
The Complainant’s contentions can be summarised as follows.
The disputed domain name references the Complainant’s International Trade Mark Registration for HIQCELL (no. 1104864). HiQCell is the product name of a regenerative medical service / stem cell therapy offered by the Complainant. The HIQCELL trade mark is featured prominently on the Complainant’s website and on its promotional material. The Complainant therefore contends that the disputed domain name is identical to a trade mark in which the Complainant has rights, for the purposes of paragraph 4(a)(i) of the Policy and paragraphs 3(b)(viii) and 3(b)(ix)(1) of the Rules.
The Respondent has no connection with the Complainant. The Respondent has not shown any legitimate interest in respect to the disputed domain name, which is inactive and does not host a website. Following the Complainant’s initial submission of its complaint, the Respondent contacted the Complainant regarding the disputed domain name, suggesting that he intended to use the domain name legitimately to sell a product in a related field (medicine). The Complainant considers this to be unlikely and would resist any such entry into the market by the Respondent using the Complainant’s trade mark. The Complainant therefore contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy and paragraph 3(b)(ix)(2) of the Rules.
The Complainant believes that the Respondent registered the disputed domain name for the specific purpose of preventing the Complainant from owning the disputed domain name. Before filing the Complaint the Complainant communicated to the Respondent that it would be willing to acquire the disputed domain name from the Respondent and reimburse the Respondent’s costs in registering the disputed domain name. The Respondent did not reply. The Complainant contends that the disputed domain name was registered and is being used in bad faith, for the purposes of paragraphs 4(a)(iii) and 4(b) of the Policy and paragraph 3(b)(ix)(3) of the Rules.
The Complainant requests by way of a remedy that the disputed domain name be transferred to it.
The Respondent did not reply substantively to the Complainant’s contentions.1
6. Discussion and Findings
A. Identical or Confusingly Similar
As the Complainant owns an Australian registered trade mark for HIQCELL, the Panel finds that the disputed domain name is identical to a trade mark owned by the Complainant.
B. Rights or Legitimate Interests
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent does not appear to have made any use of the disputed domain name beyond registering it, and the disputed domain name does not host an active website. The Complainant has submitted that the Respondent indicated to the Complainant that it intended to use the disputed domain name in a similar field to the field in which the Complainant’s business operates. However this does not appear to the Panel to be sufficient evidence that the Respondent has any legitimate interests in the disputed domain name. As noted above, the Respondent did not respond substantively to the Complaint.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides guidance regarding establishing bad faith.
Four non-exhaustive circumstances are identified which evidence bad faith registration and use. These may be summarized as follows:
(i) circumstances indicating the respondent registered the domain name to sell it to the rights-holder at a profit;
(ii) circumstances indicating that the respondent registered the domain name to prevent the rights holder from registering a domain name;
(iii) circumstances indicating that the respondent registered the domain name to disrupt the business of a competitor; and
(iv) circumstances indicating the respondent has used the domain name to divert Internet traffic for commercial gain by creating a likelihood of confusion with the Complainant’s mark.
The disputed domain name <hiqcell.com> currently has no content. Previous UDRP panels have found that passive holding of a disputed domain name does not prevent a finding of bad faith (Cleveland Browns Football Company LLC v. Andrea Denise Dinoia, WIPO Case No. D2011-0421) and that UDRP panels should consider all the circumstances of the Respondent’s behaviour in considering whether passive holding satisfies the requirements of paragraph 4(a)(iii) of the Policy. In the absence of any evidence as to why the Respondent’s registration and passive holding of a domain name corresponding to the Complainant’s trademark could be considered bona fide, the Panel concludes the Respondent’s behavior constitutes bad faith registration and use.
Accordingly, the Panel finds that the Complainant has established the third element 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 <hiqcell.com> be transferred to the Complainant.
Date: May 12, 2014
1 After having been informed of its default, the Respondent emailed the Center on April 23, 2014, stating that it had in fact sent an email regarding this matter and that the Center would find this message in its records. The Center has checked its records and it appears that the email to which the Respondent refers is a non-substantive communication of March 8, 2014, regarding a Complaint that was never registered by the Center.