Novimmune SA v. shuiyou hong
Claim Number: FA1804001780562
Complainant is Novimmune SA (“Complainant”), represented by Chantal Z. Hwang of Cooley LLP, California, USA. Respondent is shuiyou hong (“Respondent”), China.
REGISTRAR AND DOMAIN NAME
The domain name at issue is <gamifant.com>, registered with GoDaddy.com, LLC.
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.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 5, 2018; the Forum received payment on April 5, 2018.
On April 6, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <gamifant.com> 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 April 9, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 30, 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@gamifant.com. Also on April 9, 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.
A timely Response was received and determined to be complete on April 30, 2018.
On May 3, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sebastian M W Hughes 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a Swiss biopharmaceutical company. Complainant’s team of researchers invented the trademark GAMIFANT (the “Trademark”) in 2015 for the name of a drug Complainant has been developing and which it intends to introduce to the market upon completion of the relevant regulatory process.
Complainant has obtained registrations for the Trademark, and has pending applications for registration of the Trademark, in numerous jurisdictions worldwide, the earliest dating from December 2016.
Complainant was the owner of the domain name from September 2015 until September 2017, when Complainant inadvertently allowed its registration to lapse.
The domain name was registered opportunistically by Respondent shortly after Complainant’s registration lapsed.
Respondent has no rights or legitimate interests in the domain name and has made no use of the domain name; and has registered and used the domain name in bad faith.
B. Respondent
Complainant’s applications for registration of the Trade Mark in the USA and in China are still pending.
Respondent is based in China and has the right to use the domain name because the Trademark has not yet been registered in the USA.
The Trademark is not famous and Complainant has made no use of the Trademark in China. Prior to registering the domain name, Respondent was not aware of Complainant and of its Trademark.
Complainant does not deserve a monopoly of protection in every top level domain.
Because Complainant did not renew its registration for the domain name, that means Complainant gave up its registration for the domain name, and does not want the domain name.
Respondent is legitimately using the domain name for Respondent’s own website. Respondent just wants to use the domain name for Respondent’s personal website and has not responded to the offers Respondent has already received for purchase of the domain name.
Complainant has established all the elements entitling it to transfer of the domain names.
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.
Complainant has rights in the Trademark obtained through use and registration which incidentally predate Respondent’s date of registration of the domain name.
The location of Complainant’s Trademark rights is not a relevant consideration for the purposes of the first limb under paragraph 4(a) of the Policy. In any event, Complainant has a registration for the Trademark in the Hong Kong SAR of China, as well as a pending application (filed on June 23, 2017) in China, both of which incidentally predate the date of registration by Respondent of the domain name.
Disregarding the top level domain, the domain name is identical to the Trademark.
Respondent has failed to demonstrate any rights or legitimate interests in the domain name. Contrary to the bare assertions contained in the Response, the domain name has not been used.
Respondent does not possess any trademark rights in respect of the domain name and is not commonly known by the domain name, nor has Respondent been making a legitimate non-commercial use of the domain name.
The domain name is identical to the Trademark. In all the circumstances, including the fact Respondent has made no use of the domain name since its registration by Respondent, the Panel finds that Respondent’s opportunistic registration of the domain name shortly after the domain name’s prior registration by Complainant lapsed amounts to bad faith.
The Panel finds that, even if Respondent is to be believed that Respondent was not previously aware of Complainant and of its Trademark, Respondent must have been aware of Complainant’s rights in the Trademark at the time of Respondent’s opportunistic registration of the domain name.
Accordingly, the Panel finds that the domain name has been registered and used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gamifant.com> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: May 9, 2018
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