Les Laboratoires Servier v. S Jon Grant
Claim Number: FA2010001917549
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <serviertraining.us>, registered with Dynadot, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 20, 2020; the Forum received payment on October 20, 2020.
On October 22, 2020, Dynadot, LLC confirmed by e-mail to the Forum that the <serviertraining.us> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the Policy).
On October 26, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 2020 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@serviertraining.us. Also on October 26, 2020, 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 November 23, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 usTLD Dispute Resolution Policy ("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 usTLD Policy, usTLD 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 is the largest French pharmaceutical group on an independent level and the second largest pharmaceutical French group in the world. Complainant has rights in the SERVIER mark through Complainant’s registration of the mark with the European Union Intellectual Property Office (“EUIPO”) (e.g. Reg. No. 4,279,171, registered on February 7, 2005). Respondent’s <serviertraining.us> domain name is identical or confusingly similar to Complainant’s SERVIER mark as it includes the Complainant’s entire mark and adds the descriptive term “training” and county code-top level-domain (ccTLD) “.us.”
Respondent lacks rights or legitimate interests in the <serviertraining.us> domain name. Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to use the SERVIER mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services as the disputed domain name redirects users to a parking page listing commercial links.
Respondent registered and uses the <serviertraining.us> domain name in bad faith. Respondent uses the disputed domain name to redirect users to a parking page displaying commercial links. Furthermore, Respondent has a history of cybersquatting and has been subject to several adverse UDRP decisions. Additionally, Respondent had actual notice of Complainant’s rights in the SERVIER mark prior to registering the disputed domain names based on the famous nature of Complainant’s distinctive mark. Lastly, Respondent failed to respond to Complainant’s cease and desist letter.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Les Laboratoires Servier (Complainant), of Suresnes, France. Complainant is the owner of domestic and international registrations for the mark SERVIER, which it has used continuously since at least as early as 1990, in connection with its provision of various pharmaceuticals as well as numerous medical goods and services. Complainant is also the owner of multiple domain names incorporating its SERVIER mark in connection with both generic and geographical TLDs.
Respondent is S Jon Grant (Respondent), who’s address is listed as Las Vegas, AZ, United States. As there is no such location and the zip code given corresponds with Las Vegas, NV, USA it is likely that AZ was listed in error since it is commonly known that Las Vegas is located in NV. Respondent’s registrar’s address is listed as San Mateo, CA, USA. The Panel notes that the <serviertraining.us> domain name was registered on or about June 21, 2020.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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.”).
Complainant asserts rights in the SERVIER mark through Complainant’s registration of the mark with the EUIPO (e.g. Reg. No. 4279171, registered on February 7, 2005). Registration of a mark with the EUIPO is sufficient to demonstrate rights in the mark per Policy ¶ 4(a)(i). See Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (“Registration of a mark with the EUIPO, a government agency, sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i).”). The Panel here finds Complainant has demonstrated rights in the SERVIER mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <serviertraining.us> domain name is identical or confusingly similar to Complainant’s SERVIER mark as it includes Complainant’s entire mark with the addition of the descriptive term “training” and the ccTLD “.us.” The addition of generic or descriptive terms and a ccTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain as the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also Dansko, LLC v. zhang wu, FA 1757745 (Forum Dec. 12, 2017) (finding the <danskoshoes.us.com> domain name to be confusingly similar to the DANSKO mark under Policy ¶ 4(a)(i), despite the addition of the “.us” ccTLD and the “.com” gTLD). The Panel here finds the disputed domain name is confusingly similar to Complainant’s SERVIER mark per Policy ¶ 4(a)(i).
Respondent raises no contentions regarding Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <serviertraining.us> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to Complainant’s SERVIER mark. When a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name); see also Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). Here, the WHOIS information for the disputed domain name lists the registrant as “S Jon Grant,” and Complainant correctly argues that Respondent fails to provide any evidence that Respondent was authorized to use Complainant’s SERVIER mark. The Panel here finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(iii).
Complainant argues that Respondent fails to use the <serviertraining.us> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain name redirects users to a parking page listing commercial links. Using a disputed domain to host a parked page with hyperlinks may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) or (iv). See Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”); see also Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Here, Complainant provides screenshots of the resolving website and highlights the hyperlinks present. The Panel here finds Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) or (iv).
Respondent raises no contentions regarding Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant contends Respondent registered and uses the <serviertraining.us> domain name in bad faith because Respondent uses the disputed domain name to redirect users to a parking page listing commercial links. Using a disputed domain name to host hyperlinks can evidence bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”). The Panel here again notes that Complainant provides screenshots of the resolving websites, highlighting the hyperlinks present. The Panel here finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Complainant contends Respondent registered and uses the <serviertraining.us> domain name in bad faith because Respondent failed to respond to Complainant’s cease and desist letter. Failure to respond to a cease and desist letter can evidence bad faith registration and use per Policy ¶ 4(a)(iii). See Seiko Epson Corporation v. Ashish Sen, FA 1702054 (Forum Dec. 12, 2016) (finding that failing to respond to a cease-and-desist demand letter constitutes bad faith). Here, Complainant provides the cease and desist letter in which Respondent failed to respond to. The Panel here finds that Complainant’s evidence supports a finding of that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Respondent raises no contentions regarding Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the applicable usTLD Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <serviertraining.us> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: December 7, 2020
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