WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Laboratoires Thea v. Yang Wen Bin
Case No. D2018-0303
1. The Parties
The Complainant is Laboratoires Thea of Clermont-Ferrand, France, represented by Harlay Avocats, France.
The Respondent is Yang Wen Bin of Fuzhou, Fujian, China.
2. The Domain Name and Registrar
The disputed domain name <theapharma.net> 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 February 9, 2018. On February 12, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 13, 2018, 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 26, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 18, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 22, 2018.
The Center appointed Dietrich Beier as the sole panelist in this matter on March 29, 2018. 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 company specialized in the development and manufacture of ophthalmological products. The Complainant is the proprietor of several registered word and figurative trademarks for THEA PHARMA, inter alia of the International Trademark Registration 765628 THÉA PHARMA registered on July 30, 2001 in class 5, whereas the device element consists of two dots and a circle.
The disputed domain name was registered on May 11, 2017. In accordance with the Complaint, the disputed domain name resolved in September 2017 to a website mimicking the content of "www.lehdet.com", being subsequently inactive since, at least, January 26, 2018.
Initially, when Complainant tried to contact the registrant of the disputed domain name, the name and address of the Respondent was masked by a Privacy Protect system and became only public later.
5. Parties' Contentions
The Complainant is a French company dating back to 1993 and is specialized in the development and manufacture of ophthalmological products, both preventive and curative, in the areas of diagnosis, surgery and therapeutics, ranging from well-known classics to innovative products. The Complainant distributes its products, using the THEA PHARMA trademarks worldwide, in more than 70 countries (including the United States of America and China), through subsidiaries, licensees and distributors.
The Complainant contends that the disputed domain name is identical or confusingly similar to its THEA PHARMA trademarks and that the Respondent has no rights or legitimate interests in the disputed domain name.
Furthermore, the Complainant states that the disputed domain name was registered in bad faith, as the Respondent could not ignore the Complainant and its goods when the disputed domain name was registered. In addition, the Complainant contends that the disputed domain name has been resolving lately to an inactive website. By registering, it seems clear that the Respondent has maintained the disputed domain name in order to prevent the Complainant to register its trademark as a domain name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In order to succeed in its claim, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests with respect to 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 has established the fact that it has valid trademark rights for THEA PHARMA in class 5.
The disputed domain name is identical or confusingly similar to the Complainant's THEA PHARMA trademark since it is reproduced in the disputed domain name, it is acknowledged that the generic Top-Level Domain ("gTLD") "com" does not generally have a relevant influence on the similarity of a trademark and a domain name and that the device elements of a word/device trademark mark are largely disregarded for purposes of assessing identity or confusing similarity under the first element.
The Panel therefore considers the disputed domain name to be identical or confusingly similar to the THEA PHARMA trademarks in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
There are no indications that the Respondent has rights or legitimate interests in the disputed domain name as a licensee of the Complainant or that the Complainant granted the Respondent any permission or has given its consent to use its trademarks. Furthermore, the Respondent has no rights or legitimate interests in the disputed domain name as there is no indication that the Respondent is commonly known by the name "thea pharma" or that the Respondent is using the disputed domain names in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the disputed domain name.
The Panel therefore finds that the Respondent does not have rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In the view of the Panel, the Respondent must have been aware of the widely known Complainant and its trademarks when registering the disputed domain name, being the Complainant's trademark entirely reproduced in the disputed domain name. The Complainant has not authorized the Respondent to make use of its trademarks. From the record, the Panel does not see any conceivable good faith use being made by the Respondent of the disputed domain name.
In addition, it is the consensus view of previous UDRP panels following the decision Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, that the apparent lack of active use of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include, not exhaustive, no response to the complaint having been filed and the registrant's concealment of its identity. In the present case, no response was filed and the address data of the registrant were masked at the initial approach to contact the registrant of the disputed domain name. In addition, the Complainant is active under a distinctive name in the home country of the Respondent so that a coincidence of choosing a highly similar domain name is not likely at all.
The Panel therefore considers the disputed domain name to have been registered and used in bad faith in accordance with 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 <theapharma.net> be transferred to the Complainant.
Date: April 10, 2018