Seattle Genetics, Inc. v. Yaron Hen Tov
Claim Number: FA1206001447588
Complainant is Seattle Genetics, Inc. (“Complainant”), represented by Eric D. Gelwicks of Owen, Wickersham & Erickson, P.C., California, USA. Respondent is Yaron Hen Tov (“Respondent”), Israel.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <adcetrisforlymphoma.info>, registered with GoDaddy.com LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 6, 2012; the National Arbitration Forum received payment on June 6, 2012.
On June 7, 2012, GoDaddy.com LLC confirmed by e-mail to the National Arbitration Forum that the <adcetrisforlymphoma.info> domain name is registered with GoDaddy.com LLC and that Respondent is the current registrant of the name. GoDaddy.com LLC has verified that Respondent is bound by the GoDaddy.com LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 8, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 28, 2012 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@adcetrisforlymphoma.info. Also on June 8, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 3, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <adcetrisforlymphoma.info> domain name is confusingly similar to Complainant’s ADCETRIS mark.
2. Respondent does not have any rights or legitimate interests in the <adcetrisforlymphoma.info> domain name.
3. Respondent registered and used the <adcetrisforlymphoma.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns two trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its ADCETRIS mark: ADCETRIS (Reg. No. 4,135,920 filed January 15, 2010; registered May 1, 2012) and ADCETRIS & Design (Reg. 4,133,078 filed April 28, 2011; registered April 24, 2012).
Respondent registered the <adcetrisforlymphoma.info> domain name on August 26, 2011 and uses it to resolve to a blog-style website that features content from an old version of Complainant’s website and click-through hyperlinks.
Paragraph 15(a) of the Rules instructs this Panel to "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."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds that Complainant has established rights in the ADCETRIS mark under Policy ¶ 4(a)(i) through its trademark registrations, even though Respondent is in Israel, and that the rights date back to at least January 15, 2010, the earliest filing date. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence); see also Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of Complainant’s trademark rights date back to the application’s filing date).
Respondent’s <adcetrisforlymphoma.info> domain name is confusingly similar to Complainant’s ADCETRIS mark because it merely combines the mark with the descriptive terms “for” and “lymphoma” and the generic top-level domain (“gTLD”) “.info.” These changes do not distinguish the <adcetrisforlymphoma.info> domain name from Complainant’s mark. See Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several domain names incorporating the complainant’s entire EXPERIAN mark and merely adding the term “credit” were confusingly similar to the complainant’s mark); see also Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).Thus, the Panel finds that Respondent’s <adcetrisforlymphoma.info> domain name is confusingly similar to Complainant’s ADCETRIS mark under Policy ¶ 4(a)(i).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that Respondent is not commonly known by the <adcetrisforlymphoma.info> domain name. The WHOIS information identifies the registrant of the disputed domain name as “Yaron Hen Tov,” and Complainant argues that there is no evidence that Respondent is commonly known by the domain name. Complainant further claims that Respondent is not connected or affiliated with Complainant and that Complainant did not license or authorize Respondent to use Complainant’s ADCETRIS mark. Therefore, the Panel finds that Respondent is not commonly known by the <adcetrisforlymphoma.info> domain name for the purposes of Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant claims that Respondent uses the <adcetrisforlymphoma.info> domain name to resolve to a blog-style website. Complainant asserts that Respondent provides content that is copied and/or modified from various third-party websites, including from an older version of Complainant’s website. Complainant argues that the information found on the resolving website contains incorrect and dangerously misleading information relating to cancer and lymphoma, such as falsely suggesting that Complainant’s ADCETRIS product treats all forms of lymphoma. Complainant further alleges that Respondent surrounds this content with hyperlinks to alternative cancer treatments and treatment centers. Complainant argues that the provision of incorrect information and competing hyperlinks is evidence that Respondent lacks rights and legitimate interests in the <adcetrisforlymphoma.info> domain name. The Panel agrees and finds that Respondent is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the <adcetrisforlymphoma.info> domain name under Policy ¶ 4(c)(iii). See H-D Mich. Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent owns numerous domain names that feature the trademarks of third parties, such as <ipad3forfree.com>, <iphone5forfree.net>, and <prolia4osteoporosis.com>, among others. Complainant argues that this demonstrates Respondent’s bad faith registration and use of the <adcetrisforlymphoma.info> domain name. The Panel agrees with Complainant and finds that Respondent’s ownership of domain names containing well-known trademarks is evidence that Respondent registered and uses the <adcetrisforlymphoma.info> domain name in bad faith under Policy ¶ 4(b)(ii). See Armstrong Holdings, Inc. v. JAZ Assocs., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names that infringe upon others’ famous and registered trademarks).
Respondent’s registration and use of the <adcetrisforlymphoma.info> domain name disrupts Complainant’s business by providing inaccurate information regarding Complainant’s products and the competing links on the website resolving from the confusingly similar disputed domain name. This is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Complainant contends that Respondent had actual knowledge of Complainant’s rights in the ADCETRIS mark. Complainant claims that the content found on the resolving website is evidence of Respondent’s knowledge of the Complainant’s rights in the mark. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the ADCETRIS mark and thus registered the <adcetrisforlymphoma.info> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <adcetrisforlymphoma.info> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 10, 2012
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