The Complainant is Sanofi of Paris, France; Sanofi Biotechnology of Paris, France, represented by Selarl Marchais & Associés, France.
The Respondent is Wang Xin Zhong of Yan Bian Chao Xian Zu Zi Zhi Zhou, Jilin, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the "Registrar"). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on March 21, 2017. On March 21, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 22, 2017, 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. On March 24, 2017, the Center transmitted an email to the Parties in English and Chinese regarding the language of the proceeding. The Complainant requested the English be the language of the proceeding on March 28, 2017. The Respondent did not comment on the language of the proceeding by the specified due date.
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 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceedings commenced on March 31, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 20, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 21, 2017.
The Center appointed Sok Ling Moi as the sole panelist in this matter on April 28, 2017. 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, a French multinational company headquartered in Paris, is one of the largest pharmaceutical companies in the world by prescription sales. It engages in research and development, manufacturing and marketing of pharmaceutical products for the treatment of various diseases. It operates in over 100 countries on all five continents and employs more than 100,000 people.
The Complainant develops and sells an injectable prescription drug used for the treatment of adult patients with bad uncontrolled cholesterol, under the trade mark PRALUENT. Information related to the drug is available on the website "".
The Complainant is the owner of the following trade mark registrations:
Jurisdiction
Trade Mark
Registration Number
Classes
Registration Date
International trade mark (designating China)
PRALUENT
1212484
5
June 12, 2014
European Union trade mark
PRALUENT
12936886
5
October 28, 2014
France
PRALUENT
4057155
5
December 26, 2013
United States of America
PRALUENT
4659691
5
December 23, 2014
The Complainant also owns the following domain name registrations:
Domain Name
Registration Date
April 25, 2014
April 17, 2015
January 27, 2015
December 16, 2014
October 2, 2014
January 27, 2015
The disputed domain name was registered on September 18, 2016, some two years after the Complainant has registered the trade mark PRALUENT in various jurisdictions including China. According to evidence submitted by the Complainant, the disputed domain name resolves to a parking page containing an offer to sell the disputed domain name to the highest bidder. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to its PRALUENT trade mark. The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.
The Complainant requests for the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
Pursuant to paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
Paragraph 10(b) and (c) of the Rules requires the Panel to ensure that the proceeding takes place with due expedition and that the Parties are treated fairly and given a fair opportunity to present their respective case.
The language of the Registration Agreement for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and has requested that English be the language of the proceeding.
On the record, the Respondent appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds persuasive evidence in the present proceeding to suggest that the Respondent has sufficient knowledge of English. In particular, the Panel notes that:
(a) The disputed domain name is registered in Latin characters, rather than Chinese script;
(b) According to evidence submitted by the Complainant, the contents of the parking page to which the disputed domain name resolves were in English;
(c) A reverse WhoIs search conducted independently by the Panel using the Respondent's email address shows that the Respondent has registered several other domain names consisting of Latin characters and English terms, for example , , , , and ;
(d) The Center has notified the Respondent of the proceeding in both Chinese and English;
(e) The Respondent has been given the opportunity to present its case in this proceeding and to respond to the issue of the language of the proceeding but has failed to do so; and
(f) The Center informed the Respondent that it would accept a response in either English or Chinese.
Considering the above circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in his or her ability to articulate the arguments for this case.
The Panel has taken into consideration the fact that to require the Complaint and all supporting documents to be re-filed in Chinese would in the circumstances of this case cause an unnecessary cost burden to the Complainant and unfairly disadvantage the Complainant. The proceeding would be unnecessarily delayed.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that (i) it shall accept the Complaint and all supporting materials as filed in English; and (ii) English shall be the language of the proceeding and the decision will be rendered in English. 6.2 Substantive Matters
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred:
(i) the disputed domain name registered by the Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
On the basis of the evidence introduced by the Complainant, the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights in PRALUENT by virtue of its use and registration worldwide of the same as a trade mark. The disputed domain name incorporates the Complainant's trade mark PRALUENT in its entirety. The addition of the new generic Top-Level Domain ("gTLD") ".xyz" does not serve to distinguish the disputed domain name from the Complainant's trade mark, and may be disregarded for the purpose of the similarity assessment.
Consequently, the Panel finds that the disputed domain name is identical with the Complainant's trade mark.
Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the Complainant bears the burden of establishing that the Respondent lacks rights or legitimate interests in the disputed domain name. However, once the Complainant makes a prima facie showing under paragraph 4(a)(ii), the burden of production shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:
(i) before any notice to it of the dispute, the Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent has been commonly known by the disputed domain name, even if it has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
(See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao internet foshan co, ltd,WIPO Case No. D2013-0974.)
The Panel is satisfied that the Complainant has made out a prima facie caseshowing that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent's name does not bear any resemblance to the term "praluent". The Complainant has confirmed that the Respondent is not in any way related to or affiliated with the Complainant or otherwise authorized or licensed to use the PRALUENT trade mark or to seek registration of any domain name incorporating the trade mark. The disputed domain name resolves to a parking page listing the disputed domain name for sale. In the Panel's opinion, this is sufficiently evocative of cybersquatting to require the Respondent to come forward with evidence to rebut the presumption.
The Respondent has however failed to respond. The Panel therefore finds that the Respondent has failed to demonstrate any its rights or legitimate interests in the disputed domain name.
Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to the Complainant who is the owner of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the Respondent has registered the disputed 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 disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's websites 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 websites or location or of a product.
The Complainant and its trade mark PRALUENT enjoy a cross-border reputation. Being an invented name, PRALUENT is highly distinctive. A cursory Internet search would have disclosed the PRALUENT trade mark and its extensive use by the Complainant. Thus a presumption arises that the Respondent was aware of the Complainant's PRALUENT trade mark and related domain names when it registered the disputed domain name.
The Respondent has also failed to provide any evidence of bona fide use of the disputed domain name. Instead, the disputed domain name resolves to a parking page listing the disputed domain name for sale. This suggests that the Respondent had registered the disputed domain name primarily for the purpose of selling it presumably for valuable consideration and/or to disrupt the Complainant's business.
Furthermore, efforts to send written notice of the proceedings to the Respondent at the facsimile number as well as physical address provided by the Respondent to the Registrar (and in turn to the Center) failed which suggests that the Respondent had provided false contact details.
The Panel finds therefore that, taking into account all the circumstances, it is adequate to conclude that the Respondent has registered and used the disputed domain name in bad faith.
Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) 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.
Sok Ling Moi
Sole Panelist
Date: May 31, 2017
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