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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

American Home Products Corporation and Genetics Institute, Inc. vs. Global Produtions [sic]

Case No. D2000-0456

 

1. The Parties

The Complainants are American Home Products Corporation, a corporation organized under the laws of the State of Delaware, United States of America, having its principal place of business at 5 Giralda Farms, Madison, New Jersey, United States of America, and Genetics Institute, Inc., a corporation organized under the laws of the State of Delaware, United States of America, having its principal place of business at 87 Cambridge Park Drive, Cambridge, Massachusetts, United States of America, and is a wholly owned subsidiary of Complainant American Home Products Corporation. For ease of reference complainants will be referred to, jointly and severally, as "Complainant."

The Respondent is Global Produtions [sic], an entity having an address at 777 E. Tahquitz Canyon, Suite 200, Palm Springs, California, United States of America.

 

2. The Domain Names and Registrar

The domain names at issue are "geneticsinstitute.com" and "egeneticinstitute.com", which domain names are registered with Network Solutions, Inc., based in Herndon, Virginia, United States of America.

 

3. Procedural History

A Complaint was submitted in hard copy to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on May 18, 2000, consisting of a signed original together with four copies. On May 22, 2000, a Deficiency Notice was sent to the Complainant, noting that Complainant had failed to submit the Complaint in electronic form.

On May 19, 2000, a Request for Registrar Verification was transmitted to the registrar, Network Solutions, Inc. ("NSI") requesting it to: (1) confirm that the domain name at in issue is registered with NSI; (2) confirm that the person identified as the Respondent is the current registrant of the domain name; (3) provide the full contact details (i.e., postal address(es), telephone number(s), facsimile number(s), e-mail address(es)) available in the registrar’s Whois database for the registrant of the disputed domain name, the technical contact, the administrative contact and the billing contact; (4) confirm that the Uniform Domain Name Dispute Resolution Policy (the "Policy") is in effect; (5) indicate the current status of the domain name.

On May 25, 2000, the Center received an Amended Complaint in electronic format, and on May 29, 2000, the Center received a hard copy original and four copies of the Amended Complaint.

On May 24, 2000, NSI confirmed by reply e-mail that the domain names "geneticsinstitute.com" and "egeneticinstitute.com" are registered with NSI, are currently in active status, and that the Respondent is the current registrant of the name. However the registrar indicated that the domain name "egeneticinsititute.com was deleted on May 23, 2000, due to non-payment of registration fees. The registrar also forwarded the requested Whois details, and confirmed that the Policy is in effect.

The WIPO Center determined that the Amended Complaint satisfies the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel has independently determined and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999 (the "Policy"), the Uniform Rules, and the Supplemental Rules. The required fees for a single Panelist were paid on time and in the required amount by the Complainant.

No formal deficiencies having been recorded, on May 31, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI and ICANN), setting a deadline of June 19, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail addresses indicated in the Complaint and specified in NSI’s confirmation. In addition, the complaint was sent by express courier to the postal address given. Having reviewed the communications records in the case file, the Administrative Panel finds that the WIPO Center has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." In addition, a late email communication received from a representative of Respondent indicates that Respondent received actual notice.

On June 21, 2000, not having received any response, the WIPO Center sent the parties a formal Notification of Respondent Default.

On July 20, 2000, in view of the Complainant's designation of a single Panelist, the WIPO Center appointed M. Scott Donahey to serve as sole Panelist.

On June 30, 2000, The WIPO Center received an email from a Mr. Anthony Douglas, stating: "I just wanted to let you know that the domain name GeneticsInstitute.com was not registered in bad faith and thus does not meet the requirements for a domain transfer." The Administrative Contact listed in the Whois details for the domain name "geneticsinstitute.com" is listed as "douglass, tony." Complaint, Annex 1.

 

4. Factual Background

Complainant registered the trademark GENENTICS INSTITUTE and design in connection with pharmaceutical preparations for the treatment of cancer, autoimmune diseases, blood disorders, platelet depletion and related medical uses with the United States Patent Office ("USPTO") on May 6, 1997.

Complainant promotes and advertises blood coagulation products in the Unites States Canada and Europe, all of which advertisements identify Complainant by name and bear the trademark GENETICS INSTITUTE and design.

Respondent registered the domain name "geneticsinstitute.com" on December 2, 1999.

The above domain name resolves to a web site captioned, "Domains Are Free.com", stating "Welcome to the parked homepage of www.genticsinstitute .com," and offering the procurement of domain names, and web hosting.

Claimant contacted Respondent by telephone to offer to purchase the domain name "geneticsinstitute.com", and Respondent offered to sell the name for US$10,000.

 

5. Parties’ Contentions

Complainant contends that Respondent has registered as domain names a mark which is confusingly similar or identical to the trademark registered and used by Complainant, that Respondent has no rights or legitimate interests in respect to the domain name at issue, and that Respondent has registered and is using the domain name at issue in bad faith.

Respondent has not contested the allegations of the Complaint, other than by an email stating in a conclusory manner that the Respondent has not registered the name in bad faith.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable."

Since both the Complainant and Respondent are domiciled in the United States, and since United States’ courts have recent experience with similar disputes, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel shall look to rules and principles of law set out in decisions of the courts of the United States.

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

1) 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,

2) that the Respondent has no legitimate interests in respect of the domain name; and,

3) the domain name has been registered and is being used in bad faith.

It is clear that one of the domain names at issue "geneticsinstitute.com" is identical to the trademark in which the Complainant has rights. The addition of an initial "e" does not create a substantial difference. Nike, Inc. v. Farrukh Zia, ICANN Case No. D2000-0167. Thus, the panel finds that the domain name "egeneticsinstitute" is confusingly similar to the mark in which Complainant has rights.

Complainant has alleged and Respondent has failed to deny that Respondent has no legitimate interests in respect of the domain name at issue. Alcoholics Anonymous World Services, Inc. v. Raymond, ICANN Case No. D2000-0007; Bronson Plc v. Unimetal Sanayai ve Tic. A.S., ICANN Case No. D2000-0011.

Complainant's offer to sell one of the domain names at issue for US$10,000 is evidence of bad faith registration and use under the Policy, ¶4(b)(i). World Wrestling Federation v. Bosman, ICANN Case No. D99-0001.

Moreover, the fact that the domain name "genenticsinstitute.com" resolves to a web site at which various services are advertised at sale constitutes evidence of bad faith registration and use under the Policy, ¶4(b)(iv). Talk City, Inc. v. Robertson, ICANN Case No. D2000-0009.

The fact that the domain name "egeneticsinstitute.com" is virtually identical to "geneticisinstitute.com" indicates that any action concerning one name should equally affect the other.

 

7. Decision

For all of the foregoing reasons, the Panel decides that the domain names registered by Respondent are confusingly similar or identical to the mark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the domains name at issue, and that the Respondent's domain names have been registered and are being used in bad faith. Accordingly, pursuant to Paragraph 4(i) of the Policy, the Panel requires that the registration of the domain names "geneticsinstitute.com" and "egneneticsinstitute.com" be transferred to the Complainant.

 


 

M. Scott Donahey
Panelist

Dated: August 11, 2000


 

Footnotes:

1. A Whois search conducted by the Panel showed the domain name "egeneticinstitute.com" under the registration of Respondent until February 2002. Such references to publicly available information have been sanctioned by prior Panel decisions. Chernow Communications, Inc. v. Jonathan D. Kimball, ICANN Case No. D2000-0119; America Networks Inc. v. Tariq Masood and Solo Signs, ICANN Case No. D2000-0131.

2. See n. 1.

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0456.html

 

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