The Complainant is Gilead Sciences, Inc., United States of America (“United States”) (hereinafter “Complainant”), represented internally.
The Respondent is Nicholas Fiorillo, Ocean Vacations LLC, United States (hereinafter “Respondent”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 26, 2021. On March 1, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 2, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on March 3, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on March 4, 2021. The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on March 9, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 29, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 30, 2021. The Center appointed M. Scott Donahey as the sole panelist in this matter on April 1, 2021. 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 Complainant is a large and well-known biopharmaceutical company founded in 1987. Located in Foster City, California, United States, Complainant realized USD 24.3 billion in revenues worldwide from its operations. Complaint, Annex E. In 2019, Complainant was listed as number 139 in the Fortune 500 List of companies’ rankings and is regularly listed in the annual Fortune 500 listing and Forbes world best employers ranking. Complaint, Annex F. Complainant develops, manufactures and offers for sale over twenty-five pharmaceutical products. Its launce of the product BIKTARVY was one of the most successful drug launches ever, with sales exceeding USD 4.7 billion in 2019 and USD 6 billion in 2020. Complaint, Annexes E and G. Complainant is a member of the S&P 500 and employs over 12,000 individuals worldwide. Complainant receives many mentions on the Internet and in the world press. Complaint, Annex H. For example, Complainant was the subject of many articles published in well-known publications such as the New York Times, the Wall Street Journal, and the Washington Post. Complainant has also been the subject of programs on national television and radio. Complaint, Annex I. Since the outbreak of Covid-19, Gilead has become even more well known because of its manufacture of the anti-viral drug Remdesivir, which has been approved for treatment in the United States and Japan and conditionally in Europe. Complaint, Annex J. A former President of the United States mentioned Complainant and its Remdesivir compound in a public address to the nation on March 20, 2020, concerning the Covid-19 pandemic. Complaint, Annex J. Complainant has at least 120 trademark registrations on the GILEAD and GILEAD SCIENCES marks, which registrations date back to as early as September 4, 1990, when the mark GILEAD SCIENCES was registered with the United States Patent and Trademark Office (USPTO) with registration no. 1611838. Complaint, Annex L. Complainant registered the domain name Respondent registered the disputed domain name on February 17, 2021. Complaint, Annex A. The disputed domain name resolves to a web site on which it is indicated the domain name is for sale at the right price, and also has various pharmaceutical and medical terms that appear to be links to pharmaceutical and medical related web sites. 5. Parties’ Contentions A. Complainant Complainant contends that the disputed domain name is confusingly similar to Complainant’s GILEAD and GILEAD SCIENCES trademarks. Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant asserts that Respondent has registered and is using the disputed domain name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the complainant must prove each of the following: (i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and, (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and, (iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The disputed domain name consists of the English word “got” together with Complainant’s GILEAD and GILEAD SCIENCES trademarks. Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademarks. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The disputed domain name resolves to a web site, which both indicates that it is for sale and also contains apparent links to competitors’ web sites from which Respondent would receive compensation for directing potential customers of Complainant to Complainant’s competitors. Therefore, the Panel finds 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, M. Scott Donahey
Sole Panelist
Date: April 13, 2021
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