Complainant is F. Hoffmann-La Roche AG of Basel, Switzerland, represented internally.
Respondent is Melissa S of Hong Kong, China. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 23, 2014. On July 23, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 23, 2014, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on July 28, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was August 17, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on August 18, 2014.
The Center appointed Mark Partridge as the sole panelist in this matter on August 26, 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.
Due to exceptional circumstances, the Decision due date was extended by the Panel until October 29, 2014. 4. Factual Background
Complainant is F. Hoffmann-La Roche AG, a leading research-focused Swiss global healthcare group in the field of pharmaceuticals and diagnostics. Together with its affiliated companies, Complainant has global operations in more than 100 countries. On April 2, 2014 at 2:38 PM, Complainant filed its OCEVIENT Mark with the Swiss Federal Institute of Intellectual Property (Certificate Swiss Reg. No. 657293). The OCEVIENT Mark designates a pharmaceutical preparation for the treatment of multiple sclerosis, which has not yet launched on the market.
Based on the aforementioned Swiss application, Complainant concurrently filed several additional trademark applications for the OCEVIENT Mark on April 2, 2014. Complainant designated additional territories through a Madrid International Trademark System filing (International Reg. No. 1203237). Complainant filed the Mark with the Office for Harmonization in the International Market ("OHIM") (Community Trademark Application No. 012755336). Finally, Complainant filed an application for the OCEVIENT Mark (Serial No. 86,240,270) with the United States Patent and Trademark Office ("USPTO") in International Class 5 for goods relating to "pharmaceutical preparations for the treatment of immune diseases and disorders and inflammatory diseases and disorders."
According to the Registrar's verification, Respondent is the registrant of the disputed domain name. WhoIs records indicate Respondent registered the disputed domain name on April 2, 2014 at 6:44 PM. See ComplaintAnnex 1. Respondent has used the disputed domain name to link to the GoDaddy Auctions website where the disputed domain name is for sale for USD 850. See Complaint Annex 6.
On April 3, 2014, Complainant acquired the following domain names:
On July 14, 2014, Complainant sent Respondent a cease and desist letter, requesting that Respondent transfer the disputed domain name. Respondent failed to reply.
Subsequently, Complainant filed this Complaint seeking transfer of the disputed domain name from Respondent. 5. Parties' Contentions A. Complainant
Complainant alleges rights in the trademark OCEVIENT dating back to April 2, 2014 at 2:38 PM, as evidenced by filing the aforementioned applications through the Swiss Federal Institute of Intellectual Property, Madrid International Trademark System, OHIM, and USPTO.
Complainant contends: (1) that it is the exclusive owner of the trademark rights to the OCEVIENT Mark; (2) that the disputed domain name is identical or confusingly similar to Complainant's Mark; (3) that Respondent has no right or legitimate interests in the disputed domain name because no license, permission, or authorization was granted by Complainant or any of its affiliates to use the Mark; (4) that Respondent has registered and used the disputed domain name in bad faith because only someone with knowledge of Complainant's applications—considering the fact that the Mark is allegedly fanciful—could have registered the disputed domain name; (5) that Respondent knew of Complainant's applications because Respondent registered the domain name on the same date Complainant's applications were made; and (6) that Respondent is engaged in a pattern or practice of registering domain names that are identical or confusingly similar to existing trademarks and offering them for sale at prices representing a considerable profit over their direct costs of registration.
Complainant highlights the recent UDRP Decision Glaxo Group Limited v. Melissa S, WIPO Case No. D2014–0826, in which Respondent was required to transfer a domain name after a finding of bad faith registration and use. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the UDRP, Complainant must show grounds for this administrative proceeding by proving the following about Respondent's disputed domain name:
(i) Respondent's domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect to the disputed domain name; and
(iii) Respondent's disputed domain name has been registered and is being used in bad faith.
According to paragraph 15 of the Rules, the Panel "shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." A. Effect of the Default
Paragraph 14(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") states that "[i]n the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the complaint."
Paragraph 14(b) of the Rules further provides that "[i]f a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate."
The fact that Respondent has not submitted a response does not automatically result in a decision in favor of Complainant. However, the failure of Respondent to file a response may result in the Panel drawing certain inferences from Complainant's evidence. The Panel may accept all reasonable and supported allegations and inferences following from the Complaint as true. See Entertainment Shopping AG v. Nischal Soni, Sonik Technologies,WIPO Case No. D2009–1437; Charles Jourdan Holding AG v. AAIM,WIPO Case No. D2000–0403 (finding "it appropriate [. . . ] to draw an adverse inference from the Respondent's failure to reply to the Complaint and detail any legitimate rights or interests he may have in the Domain Name of the type defined in paragraph 4(c) of the ICANN Policy."). Therefore, asserted facts that are not unreasonable will be taken as true and Respondent will be subject to the inferences that flow naturally from the information provided by Complainant. Reuters Limited v. Global Net 2000, Inc., WIPO Case. No. D2000–0441; RX America, LLC v. Matthew Smith,WIPO Case No. D2005–0540. B. Identical or Confusingly Similar
Complainant has produced sufficient evidence to demonstrate that it has registered trademark rights in the OCEVIENT Mark on the Swiss Federal Institute of Intellectual Property Register pursuant to Certificate Swiss Reg. No. 657293 (filed on April 2, 2014). Pursuant to Section 6: Priority of Filing, Swiss trademark law provides that "[t]rademark rights shall be generated on entry in the Register." Therefore, rights belong to the first to file, such