WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Novabiotics Limited v. Nova Biotics AS
Case No. D2007-0781
1. The Parties
The Complainant is Novabiotics Limited of Aberdeen, United Kingdom of Great Britain and Northern Ireland, represented by Marriott Harrison, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Nova Biotics AS of Asker, Norway.
2. The Domain Name and Registrar
The disputed domain name is registered with DSTR Acquisition VII, LLC d/b/a D.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 29, 2007. On May 31, 2007, the Center transmitted by email to DSTR Acquisition VII, LLC d/b/a D a request for registrar verification in connection with the domain name at issue. On May 31, 2007, DSTR Acquisition VII, LLC d/b/a D 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”), 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 June 7, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was June 27, 2007. The Response was filed with the Center on June 26, 2007.
The Center appointed Knud Wallberg as the sole panelist in this matter on July 13, 2007. 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’s legal name is “Novabiotics Limited” and the Complainant holds the trademark registration NOVABIOTICS for goods and services in Classes 5 and 42 in the United Kingdom with an application date of August 26, 2005 and as a Community Trademark with an application date of February 1, 2006.
The Respondent’s company name “Nova Biotics AS” was registered with the Norwegian Companies Register on February 29, 2000 and the disputed domain name was registered in the same year.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the disputed domain name is identical to the NOVABIOTICS trademark in respect of which the Complainant has registered rights.
The Complainant contends that the Respondent most likely has no rights or legitimate interests in respect of the contested domain name. Although the disputed domain name appears to correspond to the Respondent’s legal name but since the Complainant has been unable to get in contact with the Respondent by using the WhoIs information of the disputed domain name it is questionable whether the Respondent is actually in business. This query is underlined by the fact that the Respondent is not currently using the disputed domain name to connect to any active website.
The Complainant contends that the Respondent has registered the disputed domain name in bad faith and is using it in bad faith within the meaning of paragraph 4(b)(i) of the Policy. It asserts that when it approached the Respondent and offered to purchase the disputed domain name, the Respondent offered to sell it for USD 1 million. The Complainant later offered to buy it for �200 but this offer remained unanswered.
B. Respondent
The contested domain name corresponds to the Respondent’s registered company name and consequently the Respondent has rights and legitimate interests in the disputed domain name. The Respondent points out that the Complainant only acquired its rights to the mark NOVABIOTICS in the United Kingdom some years after the Respondent had registered its company name in Norway and, also, after the contested domain name was registered.
The Respondent contends that it did not register and has not been using the disputed domain name in bad faith. The disputed domain name has not been used mainly due to delays in the development of new products but it has never been used in a way that could disrupt the business of the Complainant. The Respondent confirms that they were approached by the Complainant in September 2005 with request to sell the disputed domain name and that they offered to sell it USD 1 million. To exploit the potential commercial interest in a domain name is however not illegal, and since they did not receive any response to their offer they considered the matter closed until the renewed approached from the Complainant. They did not respond to these, as they found that � 200 was too far away from reflecting the value of the domain name.
Finally, the Respondent requests the Panel to find reverse domain name hijacking on the part of the Complainant.
6. Discussion and Findings
According to paragraph 15(a) of the Rules the panel shall decide a complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
It is evident that the disputed domain name is identical to the trademark NOVABIOTICS, in respect of which the Complainant has registered rights.
The requirements of paragraph 4(a)(i) of the Policy are thus met.
B. Rights or Legitimate Interests
There is nothing before the Panel to suggest that the Respondent’s registration of the company name Nova Biotics AS is anything other than genuine. Since the domain name reflects the distinctive parts of the company name – AS being the Norwegian equivalent of Ltd. – accordingly the Respondent has rights in respect of the domain name. The Panel further notes that the Respondent’s company name and domain name registration pre-dates the Complainant’s rights by some years.
The Complainant has therefore failed to establish to the satisfaction of the Panel that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy, with reference to paragraph 4(c) of the Policy, are not fulfilled.
C. Registered and Used in Bad Faith
Due to the above conclusion the Panel needs not address the question of registration and use in bad faith in Paragraph 4(a)(iii) of the Policy.
D. Reverse domain name hijacking
According to paragraph 15(e) of the Rules, the Panel may make a declaration in its decision to the effect that a “complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder”. The Panel does not find that this is the case here. Since the contested domain name did not resolve in an active website, since it was not possible or at least difficult to get in contact with the Respondent and since the Respondent offered to sell the domain name at a very high price, it seems reasonable that the Complainant brought the action against the Respondent under the UDRP.
The Respondent’s request is therefore denied.
7. Decision
For all the foregoing reasons, the Complaint is denied.
Knud Wallberg
Sole Panelist
Dated: August 10, 2007
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