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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

New England Cryogenic Center, Inc. v. Timothy Thirlwell

Case No. D2006-0092

 

1. The Parties

The Complainant is New England Cryogenic Center, Inc., Brookline, Massachusetts, United States of America, represented by Thring Townsend Solicitors, Swindon, United Kingdom of Great Britain and Northern Ireland.

The Respondent is Timothy Thirlwell, St Leonards-on-Sea, East Sussex, United Kingdom of Great Britain and Northern Ireland.

 

2. The Domain Name and Registrar

The disputed domain name <newenglandcryogeniccenter.com> is registered with Wild West Domains, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 19, 2006. On January 20, 2006, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the domain name at issue. On January 20, 2006, Wild West Domains, Inc. transmitted by email to the Center its verification response informing the Center that the Respondent named in the original Complaint is not the current registrant; the current registrant is Timothy Thirlwell, St, Leonards-on Sea, East Sussex, United Kingdom and providing the contact details for the administrative and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an Amended Complaint on February 21, 2006. 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”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 1, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was March 21, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 24, 2006.

The Center appointed Ross Carson as the sole panelist in this matter on April 10, 2006. 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.

 

4. Factual Background

Complainant has used the trademark NEW ENGLAND CRYOGENIC CENTER in association with cryogenic services including sperm banking services and sperm donor services since the early 1980’s. Complainant is North America’s largest full service cryobank and one of the largest facilities of its kind in the world. Complainant was one of the first pioneers in cryogenic storage of human cells and an early provider of donor specimens. Complainant ships donor samples to over 28 countries throughout the world.

Complainant is registered and governed by the United States Food and Drug Administration Registration Nos. 3002733251 and 3005374514. Complainant is certified and licensed by American Association of Blood Banks; Massachusetts Department of Health; New York State Department of Health; California Department of Health Services and CLIA. Annexes 5 and 8 to the Complaint. Complainant is authorized and registered in a number of countries outside the United States for its cryogenic services.

Complainant operates a website at “www.necryogenic.com”. Pages from the Complainant’s website showing use of the trademark NEW ENGLAND CRYOGENIC CENTER are attached as Annex 5 to the Complaint.

Complainant advertises and promotes its services in association with the trademark NEW ENGLAND CRYOGENIC CENTER. Annex 7(a) and 7(b) to the Complainant.

The trademark NEW ENGLAND CRYOGENIC CENTER has been exclusively and continuously used by Complainant in association with the advertisement of cryogenic services including sperm donor and sperm banking facilities. NEW ENGLAND CRYOGENIC CENTER is recognized by the public and medical profession as distinguishing the Complainant’s services.

 

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

Policy, paragraph 4(a)(i)

As stated in paragraph 4 above, Complainant is North America’s largest full service cryobank and one of the largest facilities of its kind in the world. Complainant has used its trademark NEW ENGLAND CRYOGENIC SERVICES in association with cryogenic services including sperm donor and sperm banking facilities and in the advertising and the promotion of such services and the trademark distinguishes Complainant’s services among the medical profession and the public.

Complainant submits that the domain name in dispute <newenglandcryogeniccenter.com> is identical or confusingly similar to Complainant’s common law trademark NEW ENGLAND CRYOGENIC CENTER.

Rights or Legitimate Interests

Paragraph 4(a)(ii)

Complainant submits that Respondent does not use the domain name in dispute or a name corresponding with it in connection with a bona fide offering of goods or services. Complainant further submits that Complainant has not licensed or otherwise permitted the Respondent to use Complainant’s trademark NEW ENGLAND CRYOGENIC CENTER or any trademark confusingly similar thereto. Complainant states that Respondent has never been known by the domain name in dispute. Complainant submits that Respondent has no rights or legitimate interests in respect of the domain name in dispute.

Registered and Used in Bad Faith

Policy, Paragraph 4(a)(iii)

Bad Faith Registration

Complainant states that it has been continuously using its trademark in association with cryogenic services including sperm donor and sperm banking since 1982. The registration of the domain name in dispute by Respondent on January 6, 2006, was made with full knowledge of Complainant’s trademark as Complainant’s trademark is incorporated in the domain name in dispute.

Bad Faith Use

Complainant submits that it had correspondence with a former client who repeatedly made serious, unsubstantiated allegations concerning the Complainant’s services, the personnel of Complainant and the products sold by the Complainant. The client repeatedly threatened legal proceedings but no such action has ever been undertaken.

Complainant submits that in previous discussions and correspondence the client informed the Complainant that the client was the owner of the domain name in dispute. The identity of the true owner of the domain name in dispute has been concealed as the domain name in dispute has been registered with a proxy registrant.

Complainant submits that the Respondent or hidden owner of the domain name in dispute is using the website associated with the domain name to disseminate serious unsubstantiated allegations about the quality of Complainant’s services and the integrity of Complainant’s staff. The publication of the serious unsubstantiated allegations tarnishes the Complainant’s reputation, may cause Complainant to lose existing and prospective clients and may cause severe distress among Complainant’s existing and prospective clients.

Complainant submits that the domain hosting service which hosted the domain name in dispute reserved the right to terminate domains that constitute an abuse of their service including “but not limited to posting of defamatory, scandalous, or private information about a person without their consent…”. Annex 10 to Complaint. Complainant states that the Registrant of record which is a domain hosting service removed the domain from its servers and deleted the DNS records and so informed the Center on March 24, 2006.

B. Respondent

The Respondent did not file a Response.

 

6. Discussion and Findings

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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) the 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.

The fact that the Respondent did not submit a Response does not automatically result in a decision in favor of the Complainant. The failure of the Respondent to file a Response results in the Panel drawing certain inferences from the Complainant’s evidence. The Panel may accept all reasonable and supported allegations and inferences following therefrom in the Complaint as true. See Charles Jourdan Holding AG v. AAIM, WIPO Case No. D2000-0403.

A. Identical or Confusingly Similar

Pursuant to paragraph 4(a)(i) of the Policy the Complainant must establish rights in a trademark and secondly that the domain name in dispute is confusingly similar to the trademark in which the Complainant has rights.

Complainant has established that it has used its common law trademark NEW ENGLAND CRYOGENIC CENTER in association with cryogenic services including sperm banking services and sperm donor services since early in the 1980’s. Complainant is the largest full service cryobank in the United States and one of the largest facilities of its kind in the world. The trademark NEW ENGLAND CRYOGENIC CENTER is widely used in association with the advertising, promotion and delivery of Complainant’s services and goods.

The Panel finds that the domain name in dispute <newenglandcryogenicservices.com> is identical or confusingly similar to Complainant’s trademark NEW ENGLAND CRYOGENIC CENTER.

B. Rights or Legitimate Interests

Pursuant to paragraph 4(a)(ii) of the Policy, Complainant must prove that the Respondent has no rights or legitimate interests in respect of the domain name.

The Panel finds that Respondent has not used the domain name in dispute or a name corresponding with it in connection with a bona fide offering of goods or services. Complainant has not licensed or otherwise permitted Respondent to use Complainant’s trademark NEW ENGLAND CRYOGENIC CENTER or any trademark confusingly similar thereto. Respondent has never been known by the domain name in dispute.

It is difficult for a complainant to prove the negative that a respondent does not have any rights or legitimate interests in a domain name in dispute. The Respondent was given the opportunity by way of reply to demonstrate any rights or legitimate interests in the domain name in dispute pursuant to paragraph 4(c) of the Policy. Previous decisions under the UDRP have found it sufficient for Complainant to make a prima facie showing that Respondent does not have any rights or legitimate interests in the domain name in dispute. The Respondent did not file a Response and avail itself of the benefits of paragraph 4(c) the Policy.

The Panel finds that the Complainant has proven that the Respondent does not have any rights or legitimate interests in the domain name in dispute.

C. Registered and Used in Bad Faith

Pursuant to paragraph 4(a)(iii) of the Policy, Complainant must prove that the Respondent has registered and is using the domain name in dispute in bad faith.

Complainant’s trademark NEW ENGLAND CRYOGENIC CENTER has been extensively used in the United States and abroad in association with cryogenic services including sperm banking services and sperm donor services since early in the 1980’s. The Panel concludes that Respondent registered the domain name in dispute with knowledge of Complainant’s services and staff having regard to references to Complainant’s services and staff on the web pages associated with the domain name in dispute.

Respondent uses the gTLD ‘.com’ in association with the domain name in dispute. Complainant’s evidence shows that Respondent does not offer any goods or services on the website associated with the domain name in dispute. Respondent did not submit any evidence to the contrary. There is no indication associated with the domain name in dispute that it is being used in commerce. The use of the domain name in dispute, which is identical to Complainant’s trademark NEW ENGLAND CRYOGENIC CENTER, in association with the gTLD ‘.com’ is misleading to Internet users.

In the absence of any Response, the Panel accepts that the web pages associated with the domain name in dispute contain unsubstantiated statements relating to Complainant’s services, personnel and products which are detrimental to Complainant’s business, Complainant’s personnel and the reputation of Complainant’s products.

Even if Respondent were operating a genuine complaint site, in this Panel’s view, it is not acceptable under the Policy to use the domain name in dispute which Internet users will associate with Complainant’s commercial enterprise to attract Internet users to Respondent’s website, which is not associated with Complainant. See Eastman Chemical Company v. Kumar Patel, National Arbitration Forum, FA 524752; Eastman Chemical Company v. Kumar Patel, National Arbitration Forum, FA 561094.

Respondent named as the Registrant in the amended Complaint is a service provider. The actual owner of the domain name in dispute remains unidentifiable. Complainant has never been able to identify or contact the actual owner of the domain name in dispute. Prior Panels have found that deliberately furnishing false contact information to a domain registrar can constitute bad faith use and registration. BellSouth Intellectual Property Corporation v. Real Yellow Pages, WIPO Case No. D2003-0413.

The Panel finds that the Respondent registered and used the domain name in dispute in bad faith.

 

7. Decision

For all the foregoing reasons, in accordance with paragraph 4(a) of the Policy and paragraph 15 of the Rules, the Panel orders that the domain name <newenglandcryogeniccenter.com> be transferred to the Complainant.

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Ross Carson
Sole Panelist

Dated: April 24, 2006