1. Identical or confusingly similar
The Complainants contend that the disputed domain name <wehealth.vip> is confusingly similar to the trademark WEHEALTH. WEHEALTH is a department of the Servier group that was launched in 2016 and is focused on establishing and developing partnerships between the Servier Group and promising Startups in the domain of digital health. Both complainants, LES LABORATOIRES SERVIER and BIOFARMA, each owns more than one French, EU and International trademark registrations for “WEHEALTH”. The Complainant BIOFARMA is also the registrant of the domain names <wehealth.fr>, registered on June 8, 2016, and <wehealth.com>. On the web, the Trademark WEHEALTH enjoys a dedicated website, accessible at the address https://www.wehealth-digitalmedicine.com/
In this case, the disputed domain name incorporated the WEHEALTH trademark entirely, with no additional alterations. The second level of the disputed domain name, “wehealth”, is identical to the Complainants’ various registered trademarks WEHEALTH. The generic Top-Level Domain “.vip” is a new generic top level domain name and a standard registration requirement and should be disregarded when assessing whether a disputed domain name is confusingly similar to the trademark. Usually, a domain name identical to a complainants’ registered trademark is already sufficient to establish identify or confusing similarity within the meaning of the Policy.
The Panel therefore concludes that the disputed domain name is confusingly similar to a trademark in which the Complainants have rights within the meaning of paragraph 4(a)(i) of the Policy.
2. No rights or legitimate interests
Although the Respondent did not file an administratively compliant (or any) response, the Complainant is still required to make out a prima facie case that the Respondent lacks rights or legitimate interests. Once such prima facie case is made, the Respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the Respondent fails to do so, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
The Complainants in the present case have not licensed or authorized the Respondent to register or use the disputed domain name. There is no evidence that the Respondent is known by the Disputed Domain Name or owns any corresponding registered trademarks including the terms “wewealth.vip”. The disputed domain name <wewealth.vip> directs to inaccessible websites.
In this case, because the registrant has used a proxy service in registering the disputed domain name, additional information of the registrant needs to be discovered. The uncovered identity of the registrant, an individual/entity named “li bai xing” seems to have no connection with the Complainants’ brand. The Complainants contend that no evidence suggests that the Respondent has been known in any way by the disputed domain name. The Complainants did not grant any license or authorization to the Respondent to register or use the disputed domain name, nor the use of the Complainants’ trademark on every page of the disputed website. Before the dispute, the Respondent also has not used the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.
On the basis of preponderance of evidence, and in the absence of any evidence to the contrary or any administratively compliant response being put forward by the Respondent, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name within the meaning of paragraph 4(a)(ii) of the Policy.
3. Bad faith
By trying to establish the bad faith element of paragraph 4(a) of the Policy, the Complainants have primarily attempted to rely on paragraph 4(b)(i) and 4(b)(iv) of the Policy.
Registration of the disputed domain name in bad faith – The Servier Group is widely well-known. However, the same thing cannot be said for the digital health brand created by the Group, which has only become known in 2016. The choice of word in the Complainants’ trademark is considerably non-distinctive, which consists of two common English words “We” and “Health”. The combination of which is a natural choice by products in the healthcare industry. Even though the Complainants have provided evidence showing that their “wehealth” products dominated Google.fr search, the same thing may not be trye for google searches conducted in other parts of the world using the same term. In the Panel’s own google search, a couple of other companies with the name “wehealth” show up on the first page of the search result. The Complainants have not provided evidence showing results revealed from Baidu search, the dominant internet search method in China.
The Complainants provided that on June 20, 2017, the Servier Group launched a roadshow of medical health business plans in Beijing, China, together with DayDayUp, a Chinese innovation service company. In addition, the Complainants have also provided that Servier Group has marketed its WeHealth product in China by providing a June 2017 news article, however, the Complainants are not able to further substantiate the degree of reputation of its WeHealth products in China and/or internationally. Therefore, the Panel is not entirely persuaded that the registrant has actual or inferred knowledge of the Complainants’ WeHealth product by the standard of showing of preponderance of evidence.
Use of the disputed domain name in Bad Faith – the Complainants have further asserted that this case leads to a finding of passive holding. The Complainants have provided evidence that the disputed domain name is currently not used on the web, as their root and www redirect towards error pages.
However, mere passive holding does itself give rise to a finding of bad faith use. The WIPO Jurisprudential Overview 3.0 states that “panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. However, panelists will need look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the Complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In this case, i) there is a high degree of distinctiveness of WEHEALTH and “WEHEALTH by Servier” Trademarks as well as their reputation and use on an international scale before the registration of the disputed domain name; ii) the Respondent has failed to submit any evidence of actual or contemplated good-faith use. However, the Complainants have not provided evidence proving that Respondent has breached its registration agreement in providing false contact details, or that there is implausibility of any good faith use to which the domain name may be put.
There is no law that compels registrants to actively use their domain names. In Telstra Corporation Limited v. Nuclear Marshmallows (WIPO-D2000-0003, February 18, 2000) cited by the Complainant and as recognized by the Complainant, the Panel only reasoned that it is possible, in certain circumstances for inactivity by the Respondent to amount to the domain name being used in bad faith. As noted by the Panel in Central Media S.C. v. Valentin Lotrean, (WIPO D2016-2598, February 20, 2017), “[t]he Complainant's case on bad faith hinges on alleged "passive holding" …. It does not mean, …, that mere non-use of a domain name for a website is of itself somehow incriminating. Rather, the principle is that the lack of active use of a domain name does not as such prevent a finding of bad faith. In such circumstances, panels may draw inferences from circumstances which may nonetheless be indicative of bad faith such a complainant having a well-known trade mark, no response to a complaint having been filed and/or the registrant's concealment of its identity.” Unfortunately, the Complainants have been unable to provide evidence showing additional bad faith of the Respondent in addition to the fact of mere non-use of the <wehealth.vip> domain name.
Therefore, in the absence of any evidence to the contrary (or any administratively compliant response) being put forward by the Respondent, the Panel determines that the Complainants have failed to provide that disputed domain name was registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.
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