Gilead Sciences, Inc. v. MURAD MURADYAN / MASTER DIAMANT INC
Claim Number: FA1507001631217
Complainant is Gilead Sciences, Inc. (“Complainant”), represented by Lisa Greenwald-Swire of Fish & Richardson P.C., California, USA. Respondent is MURAD MURADYAN / MASTER DIAMANT INC (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <harvonihelp.com>, registered with eNom, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 29, 2015; the Forum received payment on July 29, 2015.
On August 3, 2015, eNom, Inc. confirmed by e-mail to the Forum that the <harvonihelp.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, Inc. 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 August 6, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 26, 2015 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@harvonihelp.com. Also on August 6, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On August 28, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
1. Complainant, Gilead Sciences, Inc., is a research-based biopharmaceutical company that discovers, develops, and commercializes innovative medicines, and was founded in 1987. Complainant develops, manufactures, and offers for sale the HARVONI pharmaceutical product, and has registered the HARVONI trademark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,608,545, registered Sept. 23, 2014). The <harvonihelp.com> domain name was registered March 22, 2015.
2. The <harvonihelp.com> domain name is confusingly similar to Complainant’s mark. The domain name fully incorporates the distinctive HARVONI mark, adds the generic word “help,” and inserts the generic top-level domain (“gTLD”) “.com,” and none of such changes eliminate confusing similarity.
3. Respondent has no rights or legitimate interests in the <harvonihelp.com> domain name. Respondent is not commonly known by the HARVONI mark, and the disclaimer found at the bottom of Respondent’s resolving website specifically admits that Complainant is the proper owner of the HARVONI trademark.
4. Further, Respondent is not associated with Complainant, nor is it permitted to use the HARVONI mark. Respondent cannot establish rights or legitimate interests in the disputed domain name, because Respondent’s use does not represent a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
5. Respondent uses Complainant’s mark for its own commercial purposes by purporting to offer prescription drug assistance, both for Complainant’s products and competing products. In addition, Respondent’s resolving website invites visitors to “Request Free Consultation,” whereby users disclose their personal information to Respondent, potentially as part of Respondent’s phishing scheme.
6. Respondent has registered and is using the <harvonihelp.com> domain name in bad faith. Respondent uses Complainant’s trademark in its disputed domain name with the intention of attracting Internet users to Respondent’s website for Respondent’s own commercial gain, which falls squarely within behaviors proscribed by Policy ¶ 4(b)(iv). Respondent registered the disputed domain name with actual knowledge of Complainant and its rights in the HARVONI mark. In addition, Respondent’s use of a disclaimer on its resolving website is legally insufficient to either eliminate confusion or preclude Respondent’s liability.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Respondent has consented to the transfer of the <harvonihelp.com> domain name to Complainant.
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.”).
Preliminary Issue: Consent to Transfer
The National Arbitration Forum was copied on documentation submitted from Respondent to the Forum and Complainant, which is identified in this proceeding as “Other Correspondence.” In this document, Respondent purports to consent to the transfer of the domain name. Respondent states as follows:
Hi Kathy
It was a pleasure speaking to you today, as I mentioned this domain have been purchased for my clients and I couldn't even imagine it will create so many problems! Please let me know what should I do to fix this situation, I'm ready to transfer domain to harvoni or just release it from my account.
Thank you, and sorry for inconvenience.
Because Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name in question to Complainant, the Panel will forego the traditional UDRP analysis and order an immediate transfer of the <harvonihelp.com> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
The Respondent having consented to the transfer of the <harvonihelp.com> domain name, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <harvonihelp.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: August 31, 2015
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