DECISION

 

Absci Corporation v. Lin Shikang / Nanjing Chuanbo Biotech Com., Ltd.

Claim Number: FA2404002091334

 

PARTIES

Complainant is Absci Corporation ("Complainant"), represented by Tiffany D. Gehrke of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is Lin Shikang / Nanjing Chuanbo Biotech Com., Ltd. ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <abscitech.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd.

 

PANEL

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.

 

Alan L. Limbury, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on April 2, 2024. Forum received payment on April 2, 2024.

 

On April 2, 2024, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to Forum that the <abscitech.com> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. registration agreement, which is in Chinese,  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 4, 2024, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of April 24, 2024 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@abscitech.com. Also on April 4, 2024, the Chinese and English 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.

 

On April 11, 2024, Respondent communicated informally with Forum.

 

On April 25, 2024 Complainant submitted an Additional Submission in accordance with Forum's Supplemental Rule 7.

 

On April 25, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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 formal response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS

As noted, the Alibaba Cloud Computing (Beijing) Co., Ltd. registration agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding in relation to the <abscitech.com> domain name shall be Chinese unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.

 

The Panel notes that the <abscitech.com> domain name is in English and resolves to an English language website. In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.

 

Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese and English language Written Notice of the Complaint and, absent a Response, determines that the remainder of the proceedings may be conducted in English.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant, Absci Corporation, is a cutting-edge biotech company that

combines AI with scalable wet lab technologies to create better drugs for patients. Founded in August 2011, Complainant quickly became a global leader in soluble microbial protein expression. Complainant's websites have used the domain names <ab-sci.com> since 2013, <abscibio.com> since 2014 and <absci.com> since 2018.

 

Complainant has rights in the ABSCI  mark through several trademark registrations, including with the United States Patent and Trademark Office ("USPTO"). Complainant first used its ABSCI mark at least as early as 2012. Through continuous and widespread use since its adoption, the ABSCI mark has achieved global recognition. Respondent's <abscitech.com> domain name is confusingly similar to Complainant's ABSCI  mark.

 

Respondent lacks rights or legitimate interests in the <abscitech.com> domain name. Respondent is not licensed or authorized to use Complainant's ABSCI  mark and Complainant's use of the ABSCI mark within the biotechnology space predates any rights Respondent could claim in the domain name. Respondent is not commonly known by that name. Even prior to GDPR regulations, Respondent used a privacy service to mask its true identity. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent, which claims to be a "provider of life science products including antibodies, proteins, molecular biological and labware products", uses the domain name to mimic Complainant and to offer highly related goods and services. Respondent goes as far as to include on its website the ® symbol next to "ABSCI," as if to indicate that it has authorization to use Complainant's registered ABSCI mark. This is false and an attempt at legitimizing the sale of competing goods to divert or confuse Internet users.

 

Respondent registered the <abscitech.com> domain name in bad faith with actual knowledge of Complainant's rights in the ABSCI  mark and uses it in bad faith to attract and mislead consumers into believing that the offered products and services are those offered by or affiliated with Complainant.

 

B. Respondent

Respondent failed to submit a formal Response in this proceeding. However, in its informal communication to Forum, Respondent stated:

 

"Our company was founded in 2003 and is engaged in the research and development, production and sales of antibodies in the life science field in the early days.

 

We have been registering this domain for 9 years since January 22, 2015. "AB" in "ABSCITECH" stands for Antibody, and "SCI" means life science.

 

We have not registered the Abscitech domain name in bad faith and we have the right to enjoy the right to register and use the domain name Abscitech."

 

Respondent attached copies of a certificate of domain name registration dated January 22, 2015 and a business license dated August 20, 2003.

 

C. Complainant's Additional Submission

Complainant says Respondent's certificate of domain name registration is a well-known fraudulent item and, even if it were legitimate, it does not establish any rights in ABSCITECH as a trademark or otherwise provide any probative evidence. The business license does not include any reference to the term ABSCI or ABSCI TECH. Respondent has not provided any evidence that it is commonly known as "Absci Tech" or that it has any rights in the term ABSCI. Its argument that "AB in ABSCITECH stands for Antibody, and 'SCI' means life science" is wholly insufficient to refute Complainant's established rights in the ABSCI Mark and to rebut Complainant's prima facie showing that Respondent has no rights or legitimate interests in the mark.

 

FINDINGS

Complainant has established all the elements entitling it to relief.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 formal 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").

 

Identical and/or Confusingly Similar

Complainant has shown that it has rights in the ABSCI  mark both at common law and through several registrations, including with the USPTO (e.g., Reg. No. 5,865,931, registered on September 24, 2019). The Panel finds Respondent's <abscitech.com> domain name to be confusingly similar to Complainant's mark, only differing by the addition of the word "tech", which does nothing to distinguish the domain name from the mark, and the inconsequential ".com" generic top-level domain ("gTLD"), which may be ignored. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.

 

Complainant has established this element.

 

Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.

 

(i)         before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

 

(ii)         Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or

 

(iii)         Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.

 

The <abscitech.com> domain name was registered on January 22, 2015, three years after Complainant began using its ABSCI mark and two years after Complainant launched its website "www.ab-sci.com". Complainant has shown that, by the time the <abscitech.com> domain name was registered, Complainant had, through use, established common law rights in the ABSCI mark.

 

The domain name resolves to a website prominently featuring on every page Complainant's ABSCI mark, followed by the ® symbol and the words in fine print "A Brand of BioScience". The website offers life science products, including antibodies, proteins, molecular biological and labware products.

 

These circumstances, together with Complainant's assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <abscitech.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA 1849706 (Forum July 17, 2019). Respondent has made no attempt to do so.

 

As to Respondent's informal Response, the Panel accepts that Respondent was established in 2003 and is engaged in the same line of business as Complainant. Further, as shown by the WHOIS information, the Panel accepts that the <abscitech.com> domain name was registered on January 22, 2015. The Panel notes Respondent's claim that "AB" in "ABSCITECH" stands for Antibody, and "SCI" means life science". However, Respondent's website does not feature the word "ABSCITECH" and there is no evidence that this is a trademark. Rather, as noted above, Respondent's website features Complainant's ABSCI mark.

 

The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.

 

Complainant has established this element.

 

Registration and Use in Bad Faith

Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:

(iv)        by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on its website or location.

The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant's common law ABSCI  mark when Respondent registered the <abscitech.com> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website, by creating a likelihood of confusion with Complainant's mark as to the source of Respondent's website and of the goods and services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).

 

Complainant has established this element.

 

DECISION

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

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

 

 

 

Alan L. Limbury, Panelist

Dated: April 26, 2024