The Complainant is bioMérieux of Marcy L'Etoile, France, represented by Cabinet Plasseraud, France.
The Respondent is Randy Jones of Corona, California, United States of America ("United States"). 2. The Domain Name and Registrar
The disputed 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 June 5, 2018. On June 5, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 5, 2018, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 8, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 28, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 29, 2018.
The Center appointed Steven A. Maier as the sole panelist in this matter on July 5, 2018. 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 company registered in France. It is a provider of diagnostic solutions including software in the healthcare sector.
The Complainant is the owner of various trademark registrations for, or including, the name "biomerieux". These registrations include, for example:
- International Trademark number 933598 for the word mark BIOMERIEUX, registered on June 12, 2007 in Classes 1, 5, 9 and 10 and designating a total of 95 countries; and
- United States trademark number 3906321 for the word mark BIOMERIEUX, registered on January 18, 2011 in Classes 1, 5, 9 and 10.
The disputed domain name was registered on May 7, 2018.
According to evidence submitted by the Complainant, the disputed domain name has resolved to a GoDaddy parking page which included links to third-party websites. The evidence of the Complainant further indicates that the disputed domain name has been used in connection with a fraudulent email scheme. 5. Parties' Contentions A. Complainant
The Complainant submits that its name and mark BIOMERIEUX is a distinctive and fanciful term that has no meaning as a dictionary word. It states that its mark has been well known in the medical field for decades and that it has a presence in more than 150 countries with 43 worldwide subsidiaries. It states that it achieved revenues of EUR 2.3 billion in 2017 with 90 percent of its sales outside France. The Complainant produces media coverage relating to its profile and reputation.
The Complainant submits that, in addition to numerous word and figurative trademarks, it also operates numerous domain names comprising or including the term "biomerieux". It provides as examples and among others.
The Complainant submits that the disputed domain name is identical or confusingly similar to a trademark or service mark in which it has rights. It contends that the disputed domain fully incorporates its trademark BIOMERIEUX together with the generic or descriptive suffix "tech", which is not effective to distinguish the disputed domain name from the Complainant's trademark. On the contrary, the Complainant contends that, partly because of its own use of compound domain names, Internet users are likely to assume that the disputed domain name is operated by the Complainant.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant states that the Respondent is not connected with the Complainant and has not been granted any rights to use the Complainant's trademark BIOMERIEUX. The Complainant submits that the Respondent has not been known by the disputed domain name and that the Respondent is making neither bona fide commercial, nor legitimate noncommercial or fair, use of the disputed domain name. On the contrary, the Complainant submits that the Respondent has used a deliberately misleading name to link to parking page including pay-per-click links, and has also used the disputed domain name for the purpose of fraudulent emails. In particular, the Complainant produces evidence that the Respondent has used the disputed domain name to impersonate the Complainant's Executive Managing Director by sending emails to real estate agencies in numerous countries, purporting to come from that individual and including the Complainant's genuine postal address and telephone details.
The Complainant contends that the disputed domain name has been registered and is being used in bad faith. The Complainant states that, given the distinctive nature of its well-known trademark BIOMERIEUX and the fact that the term has no dictionary meaning, it is obvious that the Respondent had the Complainant's trademark in mind when registering the disputed domain name. The Complainant adds that the Respondent's use of the disputed domain name to impersonate the Complainant's Executive Managing Director also clearly demonstrates that the Respondent had the Complainant's trademark in mind at the time of registration. The Complainant further submits that the use of the disputed domain name for the purpose of an income-generating website, and for the purpose of the email fraud referred to above, are clearly indicative of use of the disputed domain name in bad faith.
The Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Even in a case where no Response has been filed, the Complainant must still establish that each of the three above elements is present. A. Identical or Confusingly Similar
The Complainant has established that it is the owner of registered trademark rights in the mark BIOMERIEUX. The disputed domain name is . The Panel finds that the disputed domain name wholly incorporates the Complainant's trademark and that the addition of the dictionary term "tech" is not effective to distinguish the disputed domain name from that trademark. In the circumstances, the Panel finds that that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. B. Rights or Legitimate Interests
In the view of the Panel, the Complainant's submissions referred to above give rise to a prima facie case for the Respondent to answer that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has not participated in this administrative proceeding and has not provided any explanation for the registration or use of the disputed domain name, whether in accordance with any of the criteria set out in paragraph 4(c) of the Policy or otherwise. Furthermore, the Complainant has submitted evidence, which the Respondent has not contradicted, that the Respondent has used the disputed domain name for the purposes of fraudulent emails impersonating the Executive Managing Director of the Complainant. Such use of the disputed domain name would obviously not give rise to any rights or legitimate interests and, having no other evidence of any rights or legitimate interests on the Respondent's part, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Having regard to the inherently misleading nature of the disputed domain name, the use to which it has been put and the lack of any contradiction by the Respondent, the Panel infers that the Respondent registered the disputed domain name in the knowledge of the Complainant's trademark BIOMERIEUX and with the intention of misrepresenting a legitimate connection with that trademark. Furthermore, the Panel accepts the Complainant's evidence that the Respondent has used the disputed domain name both with the intention of obtaining pay-per-click revenue based on the misleading nature of the disputed domain name and for the purpose of the fraudulent email scheme described above. The Panel concludes in the circumstances that the disputed domain name has been registered and is being used in bad faith. 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.
Steven A. Maier
Sole Panelist
Date: July 9, 2018
Full & Egal Universal Law Academy