WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION bioMérieux and bioMérieux, Inc. v. Holdings, Ozweb Case No. D2010-0779 1. The Parties
The Complainants are bioMérieux of Marcy L'Etoile, France and bioMérieux, Inc of Durham, North Carolina, United States of America, represented by Cabinet Lavoix, France.
The Respondent is Holdings, Ozweb of Efate, Republic of Vanuatu. 2. The Domain Name and Registrar
The disputed domain name (“the Domain Name”) is registered with Network Solutions, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 17, 2010. On May 17, 2010, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the Domain Name. On May 17, 2010, Network Solutions, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Network Solutions, LLC also stated that the Domain Name was created on January 17, 1996. 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 May 28, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 17, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on June 18, 2010.
The Center appointed Alan L. Limbury as the sole panelist in this matter on June 28, 2010. 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.
On July 9, 2010, by Procedural Order No. 1, the Panel noted that Network Solutions, LLC had not provided to the Center an indication as to the date on which the Domain Name was registered by the current Registrant. In order to determine the date on which the Domain Name was registered by the Respondent, as distinct from the date on which the domain name registration may have been created, the Panel invited Network Solutions, LLC to provide this date to the Center by no later than July 14, 2010. That day Network Solutions, LLC informed the Center that the Respondent became the registrant of the Domain Name on February 27, 2010. 4. Factual Background
The Complainant bioMérieux is a multinational company founded and headquartered in France, specializing in the field of in vitro diagnostics for medical and industrial applications. It is the registered proprietor of numerous BIOMERIEUX trademarks in many countries, including international trademark No. 588284, “bioMérieux and device”, registered on May 7, 1992. It is also the registered proprietor of French trademark VITEK, No. 566262, registered on January 31, 1991.
The American Company bioMérieux, Inc. is a subsidiary of bioMérieux. It was formerly named bioMérieux Vitek Inc. It is the registered proprietor of numerous VITEK trademarks in many countries, including United States trademark VITEK, No. 1674038, registered on February 4, 1992, citing first use in commerce in 1978. It is also the registered proprietor of Canadian trademark THERATRAK, No. TMA453975, registered on February 9, 1996. 5. Parties' Contentions A. Complainants
The Complainants say the Domain Name is identical or confusingly similar to their trademarks BIOMERIEUX and VITEK, that the Respondent has no rights or legitimate interest in the Domain Name, which was registered and is being used in bad faith.
As to legitimacy, the Complainants say the Respondent is neither licensed nor otherwise authorised to use their marks in the Domain Name and that none of the circumstances set out in the Policy, paragraph 4(c) are present.
As to bad faith, the Complainants say that on April 26, 2010 the Domain Name led to a webpage entitled “Effective Pharmacy Intervention”, which presented the “TheraTrak” system. At the end of that page appears text naming TheraTrac, the “VITEK microbiology identification and susceptibility testing system” and BioMerieux Vitek. The text also contains links to pornographic material, thereby tarnishing the image of the Complainants, being leaders in the field of in vitro diagnostics, and whose main mission is to contribute to the improvement of public health worldwide. Therefore the Domain Name was registered primarily for the purpose of disrupting the business of the Complainants.
As at the date of the Complaint, the Domain Name leads to a website at the domain name which presents bacteria microscopes. Microscopes are similar to the goods and the services for which the trademarks BIOMERIEUX and VITEK are registered and used. Indeed, the microscopes presented on this website are used for diagnostics, the main activity of the Complainants. Therefore, by using the Domain Name, the Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondent's website or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or location or of a product or service on the Respondent's website or location.
The Complainants seek the transfer of the Domain Name to the First Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
To qualify for cancellation or transfer of a domain name, a complainant must prove each element of paragraph 4(a) of the Policy, namely:
(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 in respect of the domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc,WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109; SSL INTERNATIONAL PLC v. MARK FREEMAN,WIPO Case No. D2000-1080 and ALTAVISTA COMPANY v. GRANDTOTAL FINANCES LIMITED et. al.,WIPO Case No. D2000-0848. A. Identical or Confusingly Similar
The Domain Name comprises the First Complainant's MERIEUX mark together with both Complainants' VITEK mark. The suffix “.com” may be disregarded.
The Panel finds the Domain Name to be confusingly similar to each of those marks.
The Complainant has established this element of its case. B. Rights or Legitimate Interests
The Panel finds the MERIEUX and VITEK marks to be distinctive and well known. The Complainants' assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interest in the Domain Name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited. The Respondent has made no attempt to do so.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name.
The Complainants have established this element of their case. C. Registered and Used in Bad Faith
It is clear on the material before the Panel and the Complainants' uncontested assertions (which, in the absence of a Response, the Panel accepts) that, since acquiring the registration of the Domain Name on February 27, 2010, the Respondent has been using the Domain Name intentionally to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainants' marks as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or of products or services on its website. Under the Policy, paragraph 4(b)(iv), such use is evidence of both bad faith registration and bad faith use. In the absence of any evidence indicating registration for a permissible purpose, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith.
The Complainant has established this element of its case. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the First Complainant, bioMérieux.
Alan L. Limbury
Sole Panelist
Dated: July 13, 2010
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