BioCryst Pharmaceuticals, Inc. v. Jon Stonehouse NA / biocrystgroup
Claim Number: FA1804001784453
Complainant is BioCryst Pharmaceuticals, Inc. (“Complainant”), represented by Michael S. Denniston of Bradley Arant Boult Cummings LLP, Alabama, USA. Respondent is Jon Stonehouse NA / biocrystgroup (“Respondent”), North Carolina, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <biocrystgroup.com>, registered with Tucows Domains Inc.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 30, 2018; the Forum received payment on April 30, 2018.
On May 1, 2018, Tucows Domains Inc. confirmed by e-mail to the Forum that the <biocrystgroup.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 May 2, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 22, 2018 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@biocrystgroup.com. Also on May 2, 2018, 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 May 29, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Complainant states that it has been using the BIOCRYST and BIOCRYST PHARMACEUTICALS, INC. marks in connection with its pharmaceutical research and drug development business since at least as early as 1991. Complainant has rights in the BIOCRYST and BIOCRYST PHARMACEUTICALS, INC. marks based upon its registration of the marks in the United States in, respectively, 2011 and 2004.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s BIOCRYST mark as it incorporates the mark in its entirety. The disputed domain name is also confusingly similar to Complainant’s BIOCRYST PHARMACEUTICALS, INC. mark because it contains the principal word of the mark, BIOCRYST. Additionally, the disputed domain name adds the generic and/or descriptive word “group” and the “.com” generic top-level domain (“gTLD”) to both marks. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the BIOCRYST or BIOCRYST PHARMACEUTICALS, INC. marks in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent is using the disputed domain name for an unrelated use. Further, Respondent used the disputed domain name to send a fraudulent e-mail. Complainant cites UDRP precedents to support its position.
In addition, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent disrupts Complainant’s business by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s websites. Further, Respondent used the disputed domain name to send a fraudulent e-mail, and this indicates bad faith registration and use. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark BIOCRYST dating back to 2011.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain name to resolve to a web site that promotes services unrelated to Complainant; further, it has used the disputed domain name to send a fraudulent e-mail impersonating one of Complainant’s executives.
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(f), 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 (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 disputed domain name is confusingly similar to Complainant’s BIOCRYST mark as it incorporates the mark in its entirety and adds the generic and/or descriptive word “group” and the “.com” gTLD. These changes to the mark are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). The Panel therefore finds that the <biocrystgroup.com> domain name is confusingly similar to the BIOYCRYST mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name per Policy ¶ 4(c)(ii). See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum Jul. 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record for the disputed domain name lists the registrant as “Jon Stonehouse NA / biocrystgroup,” and no information on the record indicates that Respondent owns any trademark or service mark rights in the BIOCRYST mark. The Panel therefore finds that Respondent has not been commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Further, Respondent’s lack of rights or legitimate interests in the disputed domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead the domain name resolves to a page that displays a ZOHO mark and advertises website creation services that are not associated with Complainant. Unrelated use of a domain name is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”). Further, Respondent used the disputed domain name to send a fraudulent e-mail impersonating one of Complainant’s executives. Panels have held that a respondent’s use of a domain to impersonate a complainant’s executive does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Microsoft Corporation v. Terrence Green, FA 1661030 (Forum, Apr. 4, 2016) (finding Respondent’s use of <microsoftcorps.com> to impersonate an executive of Complainant was not within the uses allowable under Policy ¶ 4(c)(i) and 4(c)(iii)). The Panel therefore finds that Respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) or (iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent is using the disputed domain name to disrupt Complainant’s business by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. As already noted, the disputed domain name resolves to a site that promotes services that are unrelated to Complainant. See Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites). Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv)
Further, Complainant provides a copy of an e-mail sent from the disputed domain name purporting to be from the President and CEO of Complainant to a merchant services vendor requesting that the merchant services vendor set up an account. Use of a domain name that disrupts a complainant’s business can demonstrate a respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”). The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <biocrystgroup.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 29, 2018
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