The Complainant is Armo Biosciences, Inc., United States of America (“United States”), represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, United States.
The Respondent is Adam Grunwerg, United Kingdom.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 18, 2021. On November 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 22, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 23, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 26, 2021.
The Center verified that the Complaint together with the amended 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 December 1, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 21, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 28, 2021.
The Center appointed Jeremy Speres as the sole panelist in this matter on January 7, 2022. 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 BackgroundThe Complainant is a late-stage immuno-oncology company. In 2018, Eli Lilly and Company purchased the Complainant which now functions as a wholly owned subsidiary. Since at least as early as December 2012, the Complainant adopted the name “Armo Biosciences”. From 2013, the Complainant operated under the mark ARMO BIOSCIENCES, with the ARMO component emphasised. The Complainant’s name is frequently abbreviated to ARMO in the press.
From January 2013 to January 2021 the Complainant owned, and operated its primary website at the Domain Name. The Complainant inadvertently allowed the Domain Name to lapse in January 2021 and it was subsequently registered by the Respondent on February 20, 2021.
After registration by the Respondent, the Domain Name resolved to a replica of the Complainant’s former website. Subsequently, and at the time of drafting this Decision, the Domain Name resolved to a different website relating to family medicine.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the Domain Name is confusingly similar to its ARMO BIOSCIENCES mark, that the Respondent has no rights or legitimate interests in the Domain Name, and the Domain Name was registered and used in bad faith given that a website to which the Domain Name has resolved imitated the Complainant in order to mislead users into believing that the Respondent is an authorised representative of the Complainant.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarThe Complainant has adduced evidence sufficient to prove a reputation (at least within the biological sciences industry) and common law rights in its ARMO BIOSCIENCES mark. The Domain Name is an obvious contraction of the Complainant’s mark and the mark is easily recognisable within the Domain Name. As such, the Domain Name is confusingly similar to the Complainant’s mark (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 1.7). The Complainant has satisfied the standing requirement under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsThe Respondent has used the Domain Name to impersonate the Complainant by directing the Domain Name to a website that is a replica of the Complainant’s former website. Panels have categorically held that the use of a domain name for impersonation/passing off can never confer rights or legitimate interests (WIPO Overview 3.0 at section 2.13.1).
It is not clear from the record whether the Respondent’s use of the Domain Name for a website concerning family medicine commenced before or after notice to the Respondent of the dispute, for purposes of paragraph 4(c)(i) of the Policy. Based on the screenshots of the website at the Domain Name included at paragraph 20 of the Complaint, it appears that the Domain Name may well have been resolving to the imitation website at the filing of the Complaint, which would exclude the family medicine website from the operation of paragraph 4(c)(i) of the Policy. Regardless, it is clear that the Respondent targeted the Complainant prior to switching to the family medicine website. The Complainant’s mark is inherently distinctive, enjoys a reputation and is highly specific to the Complainant, with the Domain Name clearly being a contraction of the Complainant’s mark. Thus, the Domain Name cannot sensibly refer to any other party. The content of the family medicine website bears no semantic relation to the Domain Name which the Respondent might, in good faith, have sought to adopt. In the circumstances, it is likely that the use of the Domain Name for the family medicine website was undertaken in order to take unfair advantage of the reputation of the Complainant’s mark (Boursorama S.A. v. Pencreach Jacques,WIPO Case No. D2021-1195). This cannot represent a bona fide offering conferring rights or legitimate interests to the Respondent. Furthermore, there is no evidence that any of the other circumstances set out in paragraph 4(c) of the Policy pertain.
The Complainant has made out a prima facie case that the Respondent lacks rights and legitimate interests and the burden of production thus shifts to the Respondent (WIPO Overview 3.0 at section 2.1), which the Respondent has failed to rebut. The Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThe Respondent’s impersonation of the Complainant obviously establishes targeting of the Complainant and bad faith use of the Domain Name. Bad faith registration of the Domain Name can be inferred from, firstly, the fact that the Domain Name cannot sensibly refer to any other party (per the discussion above) and the Respondent’s subsequent use of the Domain Name to target the Complainant.
In support of this, the Panel has independently established that the Respondent has been the unsuccessful respondent in three other decisions under the Policy: Captain Fin Co. LLC v. Private Registration, NameBrightPrivacy.com / Adam Grunwerg,WIPO Case No. D2021-3279; Blue Mind vs. Adam Grunwerg,WIPO Case No. D2021-0044; and Amazon Technologies, Inc. v. Adam Grunwerg / Finixio Limited, FORUM Claim No. FA2012001924577. This shows a pattern of bad faith registration and use of domain names, and this case would appear to be a continuation of that pattern.
In the circumstances of this case the Panel draws an adverse inference from the Respondent’s failure to take part in the present proceeding where an explanation is certainly called for (WIPO Overview 3.0 at section 4.3).
The Complainant has satisfied paragraph 4(a)(iii) of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name,
Jeremy Speres
Sole Panelist
Date: January 14, 2022