Abiomed, Inc. v. Joyce Khremian
Claim Number: FA2209002012448
Complainant is Abiomed, Inc. (“Complainant”), represented by Patrick J. Concannon of Nutter, McClennen & Fish, LLP, Massachusetts, USA. Respondent is Joyce Khremian (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <abiomed.xyz>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on September 16, 2022; Forum received payment on September 16, 2022.
On September 19, 2022, GoDaddy.com, LLC confirmed by e-mail to Forum that the <abiomed.xyz> 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 September 19, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 11, 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@abiomed.xyz. Also on September 19, 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 17, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it manufactures and provides medical products and services. Complainant claims rights to the ABIOMED mark through its registration with multiple trademark agencies, including in the United States in 1991.
Complainant alleges that the disputed domain name is identical or confusingly similar to its ABIOMED mark as it incorporates the mark in its entirety and merely adds the “xyz” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed any rights in the ABIOMED mark to Respondent. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a parked page displaying click-through advertising links to products and services that compete with those of Complainant.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to display competing pay-per-click hyperlinks. Respondent’s bad faith is further demonstrated by its use of false WHOIS information. Respondent registered the disputed domain name with actual and constructive knowledge of Complainant’s rights in the ABIOMED mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark ABIOMED and uses it to market medical products and services.
Complainant’s rights in its mark date back to 1991.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a parked website that displays pay-per-click advertising links to products and services that compete with those of Complainant.
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”).
The disputed domain name incorporates Complainant’s ABIOMED mark in its entirety and merely adds the gTLD “.xyz”. Under Policy ¶ 4(a)(i), the addition of a gTLD is irrelevant when determining whether a disputed domain name is identical or confusingly similar to a protected mark. See Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”). Therefore the Panel finds that the disputed domain name is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Complainant has not authorized or licensed to Respondent any rights in the ABIOMED mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by a disputed domain name. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Here, the WHOIS information of record indicates that the registrant is “Joyce Khremian”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name resolves to a parked page that displays pay-per-click advertising links to products and services that compete with those of Complainant. Use of a confusingly similar domain name to redirect users to third party competitors is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy. See Expedia, Inc. v. Compaid, FA 520654 (Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use within the meaning of Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent provided false WHOIS information because the city is listed as “91773” and there is no city of that name. However, 91773 is a valid US zip code. The Panel finds that Complainant has failed to satisfy its burden of proof for this allegation and it will not discuss the allegation further.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to host links to sites that offer competing goods and services. This is evidence of bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <abiomed.xyz> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 18, 2022
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