DECISION

 

Actelion Pharmaceuticals, Ltd. v. MARY-ANN CAMPBELL SMITH

Claim Number: FA2309002061026

 

PARTIES

Complainant is Actelion Pharmaceuticals, Ltd. ("Complainant"), represented by Brandon M. Ress of Pirkey Barber PLLC, Texas, USA. Respondent is MARY-ANN CAMPBELL SMITH ("Respondent"), South Africa.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <actelionpharmaceuticalsglobal.com> ("Domain Name"), registered with Hosting Concepts B.V. d/b/a Registrar.eu.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 8, 2023; Forum received payment on September 8, 2023.

 

On September 15, 2023, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to Forum that the <actelionpharmaceuticalsglobal.com> domain name is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 September 18, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 10, 2023 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@actelionpharmaceuticalsglobal.com. Also on September 18, 2023, 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.

 

On October 11, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant, Actelion Pharmaceuticals, Ltd., is biotechnology company based in Switzerland. Complainant has rights in the ACTELION mark through its registration of the mark with the United States Patent and Trademark Office ("USPTO") (e.g. Reg. No. 3,148,269, registered on September 26, 2006). Respondent's <actelionpharmaceuticalsglobal.com> domain name is identical or confusingly similar to Complainant's ACTELION mark as it adds the terms "pharmaceuticals" and "global" and the ".com" generic top-level domain ("gTLD") to the wholly incorporated mark.

 

Respondent lacks rights and legitimate interests in the <actelionpharmaceuticalsglobal.com> domain name. Respondent is not commonly known by the Domain Name, nor has Complainant authorized or licensed Respondent to use its ACTELION mark in the Domain Name. Respondent does not use the Domain Name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead passes off as Complainant and purports to sell medical equipment from the website at the Domain Name.

 

Respondent registered and uses the <actelionpharmaceuticalsglobal.com> domain name in bad faith. Respondent passes off as Complainant for commercial gain. Additionally, the website located at the Domain Name has been reported by various third parties as a scam website. Furthermore, Respondent registered the Domain Name with knowledge of Complainant's rights in the ACTELION mark.

 

B. Respondent

Respondent failed to submit a formal response in the proceeding but on September 26, 2023 sent an e-mail to Forum. In this e-mail it states that it registered the Domain Name on behalf a client of its and consents to the transfer of the Domain Name to the Complainant.

 

PRELIMINARY ISSUE: CONSENT TO TRANSFER

Respondent consents to transfer the <actelionpharmaceuticalsglobal.com> domain name to Complainant.  However, after the initiation of this proceeding, Hosting Concepts B.V. d/b/a Registrar.eu. placed a hold on Respondent's account and therefore Respondent cannot transfer the Domain Name while this proceeding is still pending.

 

In a circumstance such as this, where Respondent has not contested the transfer of the Domain Name, but instead agrees to transfer the Domain Name to Complainant, the Panel is authorized to forego the traditional UDRP analysis. This Panel, in recognition of the common request of the parties, in the interests of judicial expedience, and in the absence of any aggravating circumstances, has so decided to forego the traditional UDRP analysis and to order an immediate transfer of the <actelionpharmaceuticalsglobal.com> domain name.  See Boehringer Ingelheim Int'l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (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 (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 (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.").

 

DECISION

As the Complainant and the Respondent have both sought to transfer the Domain Name from the Respondent to the Complainant, the Panel concludes that such relief shall be GRANTED.

 

Accordingly, it is Ordered that the <actelionpharmaceuticalsglobal.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: October 11, 2023