The Complainant is Oncopeptides AB, Sweden, represented by Abel & Imray, United Kingdom.
The Respondents are Super Privacy Service LTD c/o Dynadot, United States of America (“Unites States”) / Sanem Erdinc, Turkey; Aslim Beyoglu, Turkey; and Soyhan Kibar, Turkey.
The disputed domain names <pepgalo.com>, <pepzurvo.com>, <tygsio.com> (the “Domain Names”) are registered with Dynadot, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 30, 2020. On October 1, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On October 2, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 14, 2020 providing the registrant and contact information disclosed by the Registrar, and requesting the Complainant to amend the Complaint adding the Registrar-disclosed registrants as formal Respondents and provide relevant arguments or evidence demonstrating that all named Respondents are the same entity and/or that all Domain Names are under common control; and/or file a separate complaint for any domain name(s) for which it is not possible to demonstrate that all named Respondents are in fact the same entity and/or that all Domain Names are under common control and indicate which domain name(s) will no longer be included in the current Complaint. The Complainant filed an amended Complaint on October 15, 2020. On October 19, 2020, the Center notified that there appears to be at least prima facie grounds sufficient to warrant accepting the Complaint for the Panel’s final determination of the consolidation request on appointment.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 20, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 9, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 10, 2020
The Center appointed Mathias Lilleengen as the sole panelist in this matter on November 23, 2020. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant is a Swedish pharmaceutical company focused on development of therapies for hematological diseases. It has been operating since 2000.
The Complainant is the owner of European Union (EU) trademark registrations EU Trade Mark No. 018249392 PEPZURVO, no. 018249398 PEPGALO and no. 018249385 TYGSIO. The Complainant filed the EU trademark applications on June 4, 2020, only hours before the Respondent registered the Domain Names.
At the time of filing the Complaint, and the time of the decision, the Domain Names redirected to a website on which the Domain Names were offered for sale.
The Complainant argues that the Complaint against the different registrants should be consolidated to one complaint. The Domain Names were registered on the same day, and make use of the same name servers. The registrants are all located in Turkey. The addresses they provided are different, but some of the telephone numbers are identical, and the e-mail addresses stems from the same domain name. The Domain Names were registered with the same Registrar and in the name of the same privacy service. The Domain Names were all listed for sale on “www.dan.com” and are now all for sale on “www.sedo.com”, at the same price. The Complainant filed EU trademark applications for all three marks on the same day and just hours before all three Domain Names were registered. In the view of the Complainant, it is clear that the Domain Names are subject to common control and consolidation is fair and equitable to all parties. It would be unfair to require the Complainant to file separate complaints.
The Complainant’s argues that the trademarks PEPZURVO, PEPGALO and TYGSIO are invented words created by the Complainant, and that the Domain Names are identical to the Complainant’s trademarks.
The Respondents have no connection with the Complainant and are not authorized by the Complainant to hold the Domain Names on its behalf. The Respondents have made no use of the Domain Names in connection with a bona fide offering of goods or services. The Respondents’ use seems restricted to offer the Domain Names for sale at an inflated price.
According to the Complainant, the Domain Names were registered for commercial gain, and/or to prevent the Complainant from acquiring the Domain Names corresponding to its trademarks. The Respondents registered the Domain Names few hours after the Complainant filed its applications to register the trademarks. The Domain Names were immediately listed for sale for an inflated price. It is inconceivable that the Respondents have independently chosen to adopt the Domain Names, if not to freeride on the Complainant’s goodwill in the trademarks. Furthermore, the Respondents have engaged in a pattern of harvesting data regarding new trademark applications from the European Union Intellectual Property Office database, and, the Complainant asserts, the Domain Names are listed for sale for close to USD 1,000.
The Respondents did not reply to the Complainant’s contentions.
Paragraph 10(e) of the Rules grants the Panel authority to “decide a request by a Party to consolidate multiple domain name disputes in accordance with the Policy and these Rules”. Similarly, paragraph 3(c) of the Rules provides that a complaint “may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder”.
The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.2 states:
“Where a complaint is filed against multiple respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.
Panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in or relevant aspects of (i) the registrants’ identity(ies) including pseudonyms, (ii) the registrants’ contact information including email address(es), postal address(es), or phone number(s), including any pattern of irregularities, (iii) relevant IP addresses, name servers, or webhost(s), (iv) the content or layout of websites corresponding to the disputed domain names, (v) the nature of the marks at issue (e.g., where a registrant targets a specific sector), (vi) any naming patterns in the disputed domain names (e.g., <mark-country> or <mark-goods>), (vii) the relevant language/scripts of the disputed domain names particularly where they are the same as the mark(s) at issue, (viii) any changes by the respondent relating to any of the above items following communications regarding the disputed domain name(s), (ix) any evidence of respondent affiliation with respect to the ability to control the disputed domain name(s), (x) any (prior) pattern of similar respondent behavior, or (xi) other arguments made by the complainant and/or disclosures by the respondent(s).”
The Panel finds it more likely than not that the same person controls the three Domain Names. The Domain Names were registered on the same day, hours after the Complainant’s trademark applications. The registrants are located in Turkey, some of the telephone numbers are identical, the e-mail addresses stems from the same domain name. The Domain Names were registered with same Registrar, are under the same privacy service, and the registrants make use of the same name servers. The Domain Names are all listed for sale at the same webpage. The registrants have made no objections to the Complainant’s contentions. The Panel finds that consolidation is fair and equitable.
The Complainant has established trademark rights. The test for confusing similarity involves the comparison between the trademarks and the Domain Names. In this case, the Domain Names are identical to the Complainant’s trademarks. For the purpose of assessing under the first element, it is permissible for the Panel to ignore the generic Top-Level Domains (“gTLD”) “.com”, see WIPO Overview 3.0, section 1.11.
The Panel finds that the Domain Names are identical to trademarks in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondents to make use of the Complainant’s trademarks. Based on the evidence, the Respondents are not affiliated or related to the Complainant in any way. There is no evidence that the Respondents have registered the Domain Names as a trademark or acquired unregistered rights. The way the Respondents have used the Domain Names is not bona fide. The Respondents’ use seems restricted to offer the Domain Names for sale.
The Panel finds the Respondents have no rights or legitimate interests in respect of the Domain Names in accordance with paragraph 4(a)(ii) of the Policy.
Taking into account the timing of the registration of the Domain Names, and the fact that the Domain Names are identical to the Complainant’s trademarks, the Panel concludes that the Respondents knew of the Complainant, at least the Complainant’s nascent trademark rights, when the Respondents registered the Domain Names.
The Domain Names are listed for sale for an inflated price. The Respondents have engaged in a pattern of harvesting data from new trademark applications, in order to register domain names. The use of a privacy protection service and the fact that the Respondents have not replied to the Complainant’s contentions, further point to bad faith.
The Panel concludes that the Domain Names were registered and are being used in bad faith, within the meaning of paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names <pepgalo.com>, <pepzurvo.com> and <tygsio.com> be transferred to the Complainant.
Date: December 1, 2020
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