Omeros Corporation v. cooper vision
Claim Number: FA2208002007423
Complainant is Omeros Corporation (“Complainant”), represented by Anne Peck of Cooley LLP, District of Columbia, USA. Respondent is cooper vision (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <omeroscareers.com>, registered with Wild West Domains, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 5, 2022; the Forum received payment on August 5, 2022.
On August 8, 2022, Wild West Domains, LLC confirmed by e-mail to the Forum that the <omeroscareers.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 August 8, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 29, 2022 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@omeroscareers.com. Also on August 8, 2022, 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 September 1, 2022, 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 engages in the business of biopharmaceuticals, focusing on the development of small-molecule and protein therapeutics. Complainant asserts rights in the OMEROS mark through its registration of the mark with the United States Patent and Trademark Office (USPTO) (e.g., Reg. No. 3,059,250, registered on February 14, 2006).
2. Respondent’s <omeroscareers.com>[i] domain name is identical or confusingly similar to Complainant’s OMEROS mark as it incorporates the mark in its entirety, only adding the generic term “careers”, along with the “.com” generic top-level domain (gTLD).
3. Respondent lacks rights and legitimate interests in the <omeroscareers.com> domain name. Complainant has not authorized or licensed Respondent to use the OMEROS mark, nor is Respondent commonly known by the domain name.
4. Further, Respondent is not using the domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as Respondent attempts to pass off as Complainant via email in furtherance of a phishing scheme.
5. Respondent registered and uses the <omeroscareers.com> domain name in bad faith. Respondent attempts to attract users for commercial gain, passing off as Complainant via email, in furtherance of a phishing scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the OMEROS mark. Respondent’s domain name is confusingly similar to Complainant’s OMEROS mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <omeroscareers.com> domain name and that Respondent registered and uses the domain name in bad faith.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant asserts rights in the OMEROS mark through its registration of the mark with the USPTO (e.g., Reg. No. 3,059,250, registered on February 14, 2006). When a complainant registers a mark with the USPTO, it is sufficient to establish rights in the mark. See Recreational Equipment, Inc. v. Liu Chan Yuan, FA 2107001954773 (Forum Aug. 9, 2021) (“Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i)”). Since Complainant provides evidence of its registration of the OMEROS mark with the USPTO, Complainant has sufficiently established rights in the mark.
Complainant argues Respondent’s <omeroscareers.com> domain name is identical or confusingly similar to Complainant’s OMEROS mark, as it incorporates the mark in its entirety, only adding the generic term “careers” and the “.com” gTLD. The mere addition of a generic term and a gTLD is not enough to differentiate a domain name from a mark per Policy ¶ 4(a)(i). See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). The Panel therefore finds the <omeroscareers.com> domain name is identical or confusingly similar to Complainant’s OMEROS mark.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <omeroscareers.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.) The Panel holds that Complainant has made a prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <omeroscareers.com> domain name because Respondent is not authorized to use the OMEROS mark, nor is Respondent commonly known by the domain name. Past panels have looked at the available WHOIS information to determine whether a respondent is commonly known by a domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Furthermore, lack of authorization to use a mark serves as further indication that a respondent is not commonly known by a domain name. See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Here, the WHOIS information shows Respondent is known as “cooper vision” and there is no evidence to suggest Complainant authorized Respondent to use the OMEROS mark. Therefore, Respondent is not commonly known by the <omeroscareers.com> domain name under Policy ¶ 4(c)(ii).
Complainant also argues Respondent does not use the <omeroscareers.com> domain name for a bona fide offering of goods and services or legitimate noncommercial or fair use because Respondent attempts to pass off as Complainant via email in furtherance of a phishing scheme. Using a domain name only to deceive users and pass off as the complainant via email, especially to perpetuate a phishing scheme, is not a bona fide offering of goods and services or legitimate noncommercial or fair use under Policy Policy ¶¶ 4(c)(i) or (iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). In this case, Complainant provides evidence of the emails sent by Respondent, passing off as Complainant. Because the Panel agrees, the Panel holds that Respondent does not use the <omeroscareers.com> domain name in compliance with Policy ¶¶ 4(c)(i) or (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts Respondent registered and uses the <omeroscareers.com> domain name in bad faith because Respondent attempts to attract users for commercial gain, requesting financial and personal information via email. Using a domain name incorporating the mark of another to attract and confuse users for financial gain via fraudulent emails, passing off as the complainant, is indicative of bad faith per Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). The record contains sufficient proof to support Complainant’s assertion that Respondent is misusing the OMEROS mark and engaging in bad faith pursuant to Policy ¶ 4(b)(iv).
The Panel finds 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 <omeroscareers.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: September 12, 2022
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