WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Institut Merieux v. Ho Nim Case No. D2010-0866 1. The Parties
The Complainant is Institut Merieux of Lyon, France, represented by Cabinet Lavoix, France.
The Respondent is Ho Nim of Shanghai, Pudong, People's Republic of China. 2. The Domain Name and Registrar
The disputed domain name (“the Domain Name”) is registered with A, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 28, 2010. On May 28, 2010, the Center transmitted by email to A, Inc. a request for registrar verification in connection with the Domain Name. On May 31, 2010, A, Inc. 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 May 31, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 20, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 21, 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. 4. Factual Background
The Domain Name was registered on October 21, 2009. It devolves to a commercial website with sponsored links to companies selling and advertising pharmaceutical preparations.
The Complainant is the registered proprietor of French trademark No. 1547249 INSTITUT MERIEUX and device, registered on August 22, 1989 and International trademark No. 367447 INSTITUT MERIEUX and device, registered on May 15, 1970. Both marks are registered with respect to pharmaceutical preparations. 5. Parties' Contentions A. Complainant
The Complainant says the Domain Name is nearly identical and confusingly similar to its trademarks, the dominant and distinctive feature of which is the name Mérieux, which for more than 100 years has been famous in the fields of human and animal medicine, biology, vaccinology and in vitro diagnostic testing. 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 Complainant says the products offered on the Respondent's website are identical or similar to those covered by the Complainant's trademarks; the Respondent does not have the permission of the Complainant to use its marks; the Respondent is making unfair use of the Domain Name; there is no plausible explanation for the Respondent's registration of the Domain Name; and a search reveals no evidence of any of the factors specified in the Policy, paragraph 4(c).
As to bad faith, the Complainant cites four UDRP decisions in which the Respondent was found to have engaged in similar conduct and the relevant domain names were ordered to be transferred to the complainants, indicating a pattern of conduct within the meaning of the Policy, paragraph 4(b)(ii). The website indicates that the Domain Name is for sale. The Respondent's use of the Domain Name to offer goods competitive with those of the Complainant falls within the Policy, paragraph 4(b)(iv). 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
(ii) 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 Panel finds the Domain Name to be confusingly similar to the Complainant's trademark INSTITUT MERIEUX and design, the distinctive feature of which is MERIEUX. The top level domain “.com” is inconsequential and to be disregarded. The absence of the final letter “x” in the Domain Name does not detract from the confusing similarity of the Domain Name.
The Complainant has established this element of its case. B. Rights or Legitimate Interests
The Complainant's 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 he 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 Complainant has established this element of its case. C. Registered and Used in Bad Faith
In Bright Imperial Ltd v. Ho Nim,WIPO Case No. D2010-0321, decided on April 28, 2010, the Panel found with respect to the present Respondent:
“The Respondent has registered many other domain names corresponding and/or confusingly similar to other third parties trademarks, thus it would appear that the Respondent purposely chose to select and register domain names corresponding to registered trademarks, indicating a pattern of conduct giving rise to bad faith registration and use of the domain name ; and
The disputed domain name is used to post links and advertisements that direct visitors to other websites that are in direct competition with the Complainant”.
As in this case, no Response was filed. The complainant in that case pointed to:
“…evidence showing that the Respondent's contact details are associated with over 100,000 active domain registrations when [his] contact details are entered into the Registrant search engine at DomainT”.
Whilst noting the Respondent's history of cybersquatting (see e.g. Berlitz Investment Corporation v. Ho Nim,WIPO Case No. D2010-0129 and Arla Foods amba v. Ho Nim,WIPO Case No. D2010-0157), it is sufficient for this Panel to dispose of this case to find that, by using the Domain Name to provide links to sites offering products competitive with those of the Complainant, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of his 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 Complainant.
Alan L. Limbury
Sole Panelist
Dated: July 8, 2010
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