The Complainant is General Electric Company of Fairfield, Connecticut, United States of America, represented by Kilpatrick Townsend & Stockton LLP, United States of America (“United States” or “US”).
The Respondent is GE Pharma Ltd of Luton, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”). 2. The Domain Name and Registrar
The disputed domain name (the “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 December 30, 2013. On December 31, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 31, 2013, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 7, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 27, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 28, 2014.
On January 29, 2014, the Center received an email communication from an individual who may have been connected with the Respondent disclaiming all connection with the Domain Name.
The Center appointed Nicholas Smith as the sole panelist in this matter on February 3, 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. 4. Factual Background
The Complainant is a United States company that traces its origins to 1878 and was established in its present form in 1892. The Complainant is one of the largest and most successful companies in the world, with 300,000 employees trading in 100 countries in areas such as technology, energy, industry and financial services. Its products and services include medical equipment, healthcare IT services and hospital operations management services.
The Complainant owns numerous registered trade marks that consist of the acronym “GE” (the “GE Mark”) which was first used by the Complainant in 1899. In particular, it owns US Registered trade marks, registration numbers 4,214,749 and 3,336273 covering a wide variety of medical items and pharmaceutical preparations.
The Domain Name was created on March, 28, 2018. It currently resolves to a website (the “Respondent’s Website”) that appears to advertise the Respondent’s supply of pharmaceuticals. In particular there is a statement on the Respondent’s Website that says the following:
“GE PHARMA LTD. is a dynamic and reputed organization in the health care business, engaged in exporting and supplying of high caliber Pharmaceutical Products, Finished Medicines, Pharmaceutical Formulations, Anticancer Formulations, Antiretroviral Formulations, Pharmaceutical Injections, Pharmaceutical Tablets, Pharmaceutical Capsules, Capsules, Ear Drops, External Preparations, Ophthalmic Preparations, Oral Liquids, Oral Solutions, Parenteral Liquid Preparations” 5. Parties’ Contentions A. Complainant
The Complainant makes the following contentions:
(i) that the Domain Name is identical or confusingly similar to the Complainant’s GE Mark;
(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant is the owner of the GE Mark having registered the GE Mark for a variety of goods and services including medical and pharmaceutical substances, in over 100 countries around the world.
The Domain Name consists of the GE Mark in its entirety and the suffix “pharma” which is an abbreviation for pharmaceuticals. The Domain Name is confusingly similar as it suggests to users that it is related to the Complainant and any pharmaceuticals that it may produce.
There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Respondent, on information and belief, is a fictitious entity that is not listed in any registry as an active business. The Respondent’s Website is a website with bogus content, with all the text and pictures on the website having being copied verbatim from other web sites from unrelated companies. The Respondent appears to be trying to pass its website off as linked to the Complainant for commercial gain. Such use does not amount to or grant the Respondent rights or legitimate interests in the Domain Name.
The Domain Name was registered and is being used in bad faith. The Domain Name resolves to a website that appears to advertise goods and services for a commercial purpose. The Respondent is attempting to take advantage of any confusion between the GE Mark and the Domain Name for the purpose of commercial gain. This conduct amounts to registration and use of the Domain Name in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. On January 29, 2014, the Center received an email from a person who, according to the Complainant, was connected with the Domain Name. In full the e-mail read:
“This is to inform you that this Domain is not the liability of me. for god sack kindly do not disturb me. Domain Owners detail is all ready in th contact us page.
[contact details provided]
Kindly contact to owners please. please do not disturb me at all otherwise i will take legal againest you.” 6. Discussion and Findings A. Identical or Confusingly Similar
To prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark.
The Complainant is the owner of the GE Mark, having registrations for GE as a trade mark in the United States and in various other countries around the world.
The Domain Name consists of the GE Mark with the addition of the abbreviation “pharma”. The Panel finds that the addition of the abbreviation “pharma” does not prevent a finding of confusing similarity between the GE Mark and the Domain Name. As “pharma” is a common abbreviation for “pharmaceuticals” an individual viewing the Domain Name may be confused into thinking that the Domain Name would refer to a site run by the Complainant that deals with pharmaceutical products. The Panel finds that the Domain Name is confusingly similar to the Complainant’s GE Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
“Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” (Policy, paragraph 4(c))
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the GE Mark or a mark similar to the GE Mark. It is clear from the Respondent’s Website that the Respondent is not making a noncommercial use of the Domain Name. Rather it appears from the evidence that the Respondent is using the Domain Name to operate a website that, without the permission of the Complainant, offers some form of pharmaceutical products under the GE Pharma name.
The Respondent’s Website, as well as the identity of the Respondent itself, suggests that the Respondent is a company known as GE Pharma Ltd. If this was a legitimate entity, it may be possible to argue that the Respondent was commonly known by the Domain Name or that the offering of pharmaceutical products on the Respondent’s Website was bona fide. However the Complainant has put on extensive evidence that no such company exists, including evidence that no such company exists in the United Kingdom Companies Registry.
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had an opportunity to rebut the presumption that it lacks rights or legitimate interests but has chosen not to do so. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name’ registration to the Complainant who is the owners of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) The Respondent has registered the Domain Name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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. (Policy, paragraph 4(b))
The Panel finds that it is likely that the Respondent was aware of the Complainant and its reputation in the GE Mark at the time the Domain Names was registered. The Complainant has a world-wide reputation in its GE Mark, see General Electric Company v. Yushi,WIPO Case No. D2008-0518 in which the panel stated
“Firstly, the Panel finds that Complainant enjoys a worldwide reputation in its GE marks with regard to its multinational electrical, technology and other business. In this day and age of the Internet and advancement in information technology, the reputation of brands and trade marks transcend national borders. Therefore, the Panel finds that it is not conceivable that Respondent would not have had actual notice of Complainant’s trade mark rights at the time of the registration of the domain name.”
Furthermore there is no obvious explanation (and the Respondent has not chosen to provide one) for the use of “ge” in the Domain Name other than to benefit from any confusion between the Domain Name and the GE Mark.
The Respondent is using the Domain Name to intentionally attempt to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the Complainant’s GE Mark as to the source, sponsorship, affiliation or endorsement of its website. The Respondent’s Website consisted of a website that appears to promote a company offering pharmaceutical products, which are goods and services that may be confused with those offered by the Complainant. It is therefore highly likely that the Respondent either receives revenue from Internet users who happen to come across the Respondent’s Website by means of confusion with the GE Mark or intends to receive revenue from its misrepresentation to the public that its website is in one way or the other associated or connected with Complainant. The Panel finds that such use amounts to use in bad faith.
Accordingly, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith under paragraph 4(a)(iii) of the Policy. 7. Decision
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 be transferred to the Complainant.
Nicholas Smith
Sole Panelist
Date: February 5, 2014
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