Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Centeon L.L.C./Aventis Behring L.L.C., King of Prussia, PA, USA ("Complainant"). The Respondent is Ebiotech.com, Santa Clara, CA, USA ("Respondent").

The domain names at issue are "HUMATEP.COM" and "MONOCLATEP.COM", registered with Network Solutions, Inc. ("NSI").

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 06/19/2000; The Forum received a hard copy of the Complaint 06/19/2000.

On 06/20/2000, NSI confirmed by e-mail to The Forum that the domain names "HUMATEP.COM" and "MONOCLATEP.COM" are registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 4.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On 06/19/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 07/10/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via email, post and fax, and to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts by email.

On 07/10/2000, having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, The Forum transmitted to the parties a Notification of Respondent Default.

On July 13, 2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed Judge Harold Kalina (Ret.) as Panelist.

Having reviewed the communications records in the case file, the Administrative Panel (the "Panel") finds that The Forum has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." 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 the Respondent.

The Complainant requests that the domain names be transferred from the Respondent to the Complainant.

A. Complainant

The Complainant contends that the Respondent has registered a domain name that is identical to and confusingly similar to its trademark registered for and in use by the Complainant. Further, the Complainant contends that the Respondent has no rights or legitimate interests to the domain name, and that the respondent has registered and is using the domain name in bad faith.

The Respondent submitted no response in this matter and, accordingly, all reasonable inferences of fact in the allegations of the Complaint will be deemed to be true.

The Complainant owns the U.S. trademark HUMATE-P (registered 10/07/1986; No. 1,411,993) for antihemophilic factor (human) and MONOCLATE-P (registered 06/05/1990; No. 1,599,160) for pharmaceutical preparations for the treatment of blood disorders. The Complainant became the owner of these marks through assignment. The Complainant manufactures and sells plasma-derived and recombinant therapeutic pharmaceutical products, among other things.

The Respondent registered the domain names in question on 08/25/1999. At that time, the Respondent also registered <ebiocare.com> and many other pharmaceutical related domain names, including <alphanate.com>, <amicar.com>, <autoplex.com>, <crinonegel.com>, <deproprovera.com>, <fertinex.com>, <hemophilm.com>, <kogenate.com>, etc. Most of these domain names contain third parties’ registered trademarked terms. When these domain names are entered into the computer, the user is transported to the Respondent’s eBioCare site.

On the <ebiocare.com> website, the Respondent operates an Internet-based pharmacy. The Respondent is not a licensee of the Complainant nor is an authorized distributor of the Complainant’s products. However, the Respondent offers the Complainant’s HUMATE-P and MONOCLATE-P brand products for sale.

In effort to resolve the conflict, the Respondent’s counsel and the Complainant’s counsel corresponded until 12/21/1999. Until this point, the domain names in question linked to the Respondent’s eBioCare website. After this point, the domain names directed the user to a website stating that the site was "Under Construction".

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that the complainant must prove each of the following three elements in order to demonstrate claims that a domain name should be cancelled or transferred:

The Complainant has rights in the registered marks HUMATE-P and MONOCLATE-P. The Respondent’s domain names are identical in sound, sight, and spelling to the Complainant’s registered marks. See Deutsche Bank AG v. Diego-Arturo Bruckner, D2000-0277 (WIPO May 30, 2000) (finding that the domain name <deutsche-bank-ag.com> is identical to the Complainant’s registered trademark "Deutsche Bank AG").

The Respondent asserts no rights or legitimate interests in the domain name in question. The failure of Respondent to produce evidence sufficient to rebut Complainant's allegations entitles the Panel to conclude that Respondent has no such rights or legitimate interests in respect of the domain name at issue. See Parfums Christian Dior v. QTR Corp., No. D2000-0023 (WIPO Mar. 9, 2000).

The Complainant’s marks are not terms by which the Respondent is commonly known. Policy ¶ 4(c)(ii). The Respondent registered many pharmaceutical related names on one date that are registered trademarks. The only connection that the Respondent has to many of these domain names is that the Respondent sells these drugs on his website.

The Respondent also has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial, fair use. Policy ¶ 4(c)(i), (iii). Rather, the Respondent is using the domain names in question as a means to transport Internet users to his business’s website. See Slep-tone Entertainment Corp. v. Sound Choice Disk Jockeys, Inc., FA 93636 (Nat. Arb. Forum Mar. 13, 2000) (finding that Respondent had no rights or legitimate interest in the domain name because domain name infringes on the Complainant’s mark).

For these reasons, the panel determines that the Respondent has no rights or legitimate interests in the domain names.

The Respondent has not responded to the Complaint and, therefore, cannot deny that the domain name was registered and is being used in bad faith, as alleged by Complainant.

Because the Respondent offers the Complainant’s products for sale, it is clear that the Respondent knew or should have known of the trademark registration and usage of the "Humate-P" and "Monoclate-P" marks prior to his registration of the domain names in question. See America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum March 15, 2000) (finding that the Respondent knew or should have known of the Complainant’s registered mark).

It is also clear to the panel that the Respondent has registered these domain names to prevent the owner of the trademarks from reflecting the marks in corresponding domain names. Policy ¶ 4(b)(ii). It is also evident that the Respondent engaged in a pattern of conduct since he registered numerous domain names of pharmaceutical products on the same day. See Nabisco Brands Co. v. The Patron Group, Inc., D2000-0032 (WIPO Feb. 23, 2000).

The Respondent’s continuing use of the site, with knowledge that he had no right to use the Complainant’s mark, reveals a willful attempt to attract users to an alternative site and cause confusion with the Complainant’s mark. Policy ¶ 4(b)(iv). See Marriott Int’l v. Café au lait, FA 93670, (Nat. Arb. Forum March 13, 2000).

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "HUMATEP.COM" and "MONOCLATEP.COM" be transferred from the Respondent to the Complainant.

July 20, 2000 Honorable Harold Kalina, Arbitrator