{ "case_number": "CAC-UDRP-103338", "time_of_filling": "2020-10-07 10:48:51", "domain_names": [ "wehealth.city", "wehealth.life", "wehealth.live" ], "case_administrator": " Iveta Špiclová (Czech Arbitration Court) (Case admin)", "complainant": [ "BIOFARMA", "LES LABORATOIRES SERVIER" ], "complainant_representative": "IP TWINS", "respondent": [ "Ming Zhang" ], "respondent_representative": null, "factual_background": "FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:\r\n\r\nBoth Complainants are part of the Servier Group: the largest French pharmaceutical group on an independent level and the second largest pharmaceutical French group globally. The group is active in 149 countries and employs more than 22,000 people throughout the world. One hundred million patients are treated daily with Servier medicinal products and generics.\r\n\r\nWEHEALTH is a department of the Servier group launched in 2016. It is focused on establishing and developing partnerships between the Servier Group and promising Startups in the domain of digital health. More information on WEHEALTH can be found on https:\/\/servier.com\/.\r\n\r\nThe Complainant BIOFARMA is also the registrant of the domain names , registered on June 8, 2016, and . Australian and Brazilian subsidiaries of the Complainants are also the registrants of the domain names and , both registered on November 14, 2016.\r\n\r\nOn the web, the Trademark WEHEALTH enjoys a dedicated website, accessible at the address https:\/\/www.wehealth-digitalmedicine.com.\r\n\r\nThe above-mentioned Trademark records and domain name registrations all predates the registrations of the disputed domain names by the Respondent.", "other_legal_proceedings": "The Panel is not informed of any other pending or decided legal proceedings relating to the disputed domain names.", "no_response_filed": "COMPLAINANT\r\n\r\nA.\tTHE DOMAIN NAMES ARE IDENTICAL OR CONFUSINGLY SIMILAR\r\n\r\nThe disputed domain names are , and . The Complainants contend that the disputed domain names are either identical or confusingly similar to the Complainants registered Trademarks.\r\n\r\nIndeed, the second levels of the disputed domain names, “wehealth”, are identical to Biofarma’s registered trademark WEHEALTH. The disputed domain names should also be considered as confusingly similar to the registered trademarks WEHEALTH BY SERVIER, as they are identical to the primary distinctive element of said Trademarks (\"wehealth”), which is a fanciful term placed in attack position of the concerned trademark registrations.\r\n\r\nMoreover, it is common case law within UDRP proceedings that the addition of gTLDs such as \".city\", “.live” and “.life” are not significant in determining whether the disputed domain names are identical or confusingly similar to the mark.\r\n\r\nThe Complainants contend that the first requirement under paragraph 4(a) of the UDRP is satisfied.\r\n\r\nB.\tRESPONDENT HAS NO RIGHTS OR LEGITIMATE INTEREST IN RESPECT OF THE DOMAIN NAMES\r\n\r\nThe Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain names for the following reasons:\r\n\r\nFirstly, according to the Complainants' verifications, the Respondent is not commonly known by the disputed domain names, which all redirect towards error pages.\r\n\r\nScreen captures of the disputed domain names use are provided as Annexes to this Complaint.\r\n\r\nThe Complainants' verification of Google and Baidu search engines did not allow us to find any element that would suggest that the Respondent could be known by \"We health\" or \"Wehealth”. The search results are provided as an Annex.\r\n\r\nThe Complainants performed verifications on WIPO’s global brand database as well as the database tmsearch.cn, without finding any registered Trademark “wehealth\" or \"we health\" held by the Respondent. The Complainants checked the transliteration of the Trademark owners' names published in Chinese characters on tmsearch.cn: none correspond to \"Ming Zhang\". The search results are provided as an Annex.\r\n\r\nSecondly, the Complainants' research did not allow us to find any clue of preparation to use the disputed domain names connected with a bona fide offering of goods or services. The disputed domain names are currently not used on the web as per the Annexes.\r\n\r\nThirdly, the Respondent has never been granted authorization, license, or any right whatsoever to use the Complainants' trademarks. The Respondent is not commercially linked to the Complainants.\r\n\r\nFourthly, since the adoption and extensive use by the Complainants of the trademarks “WEHEALTH” and “WEHEALTH by Servier\" predates the registration of the disputed domain names by the Respondent, the burden is on the Respondent to establish rights or legitimate interests it may have or have had in the disputed domain names.\r\n\r\nThe Complainants strongly believe that none of the circumstances which set out how a respondent can prove his rights or legitimate interests are present in this case.\r\n\r\nIn light of the above developments, given that the Complainants have made a prima facie case that the Respondent lacks legitimate rights or interest in the disputed domain names, the burden of proof shifts to the Respondent, who should come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain names. \r\n\r\nTherefore, the Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain names.\r\n\r\nThe Complainants contend that the second requirement under paragraph 4(a) of the UDRP is satisfied.\r\n\r\nC. THE DOMAIN NAMES WERE REGISTERED AND ARE BEING USED IN BAD FAITH\r\n\r\nThe Complainants contend that the Respondent has registered and uses the disputed domain names in bad faith for the following reasons.\r\n\r\nFirstly, the Complainants state that the Servier Group is so widely well-known that it is improbable that the Respondent ignored the Complainants' rights on the term WEHEALTH. Several press releases, communiqués, or news articles have been released on WEHEALTH and \"WEHEALTH by Servier\" before the disputed domain names registration, on an international level, including in China, as the Annexes demonstrate it. For example, on June 20, 2017, the Servier Group launched a roadshow of medical health business plans in Beijing, China, and DayDayUp, a Chinese innovation service company.\r\n\r\nSecondly, WEHEALTH is a fanciful term consisting of a combination of English dictionary words. Indeed, the combination of \"we\" and \"health\" makes no sense, grammatically speaking. The Complainant contends that the Respondent could not have registered the disputed domain names due to a dictionary meaning and\/or a supposed value of \"wehealth” as a generic term.\r\n\r\nThirdly, and in light of the two above paragraphs, the Complainants strongly believes that the Respondent has registered the disputed domain names primarily to sell them to the Complainants, owners of the trademarks WEHEALTH, for valuable consideration in excess of out-of-pocket costs directly related to the domain names.\r\n\r\nFourthly, the Complainants must also demonstrate that the disputed domain names are being used in bad faith.\r\n\r\nThe disputed domain names are currently not used on the web, as their root and www redirect towards error pages.\r\n\r\nWIPO Jurisprudential Overview 3.0 explicitly 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.\r\n\r\nAs discussed in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, the relevant issue is not limited to whether the Respondent is undertaking a positive action in bad faith concerning the domain name, but instead whether, in all the circumstances of the case, it can be said that the Respondent is acting in bad faith. The distinction between undertaking a positive action in bad faith and acting in bad faith may seem a rather subtle difference, but it is an important one. The distinction is that the concept of a domain name \"being used in bad faith\" is not limited to positive action; inaction is within the concept. \r\n\r\nIn this case, the Complainants contend that the high 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 names would qualify the Respondent as using the disputed domain names in bad faith according to the Doctrine of Passive Holding, in the event the use for commercial gain would not be qualified.\r\n\r\nConsidering all the elements above, the Complainants contend that the disputed domain names were registered, have been, and are being used in bad faith by the Respondent. The combination of all the elements listed and detailed above shows that the Respondent has acted in bad faith when registering and using the disputed domain names, in line with the UDRP doctrine developed under Paragraph 4(a)(iii) of the UDRP Policy.\r\n\r\nThe Complainants contend that the Third requirement under paragraph 4(a) of the UDRP is satisfied.\r\n\r\nRequest for consolidation\r\n\r\nThe Complainants submit a request to consolidate their disputes in a single Complaint, as provided in UDRP Rules, paragraph 10(e). Indeed, both Complainants hold Trademark Registrations that contain the term WEHEALTH. The Complainants are both part of the Servier Group and are affected similarly by the registration and use of the disputed domain names by the Respondent. \r\n\r\nCompany information showing that the Complainants share common control, SERVIER SAS acting as President of both Companies, is provided in the Annexes.\r\n\r\nIn this context, the Complainants argue that it would be equitable and procedurally efficient to permit the consolidation.\r\n\r\n\r\nOn Language of Proceedings\r\n\r\nRegarding the proceedings' language, the Respondent is domiciliated in China, and the Registrar is established in China. The Complainant has been informed the language of the Registration Agreement regarding the disputed domain names is Chinese. \r\n\r\nAs it is reminded in section 4.5.1. of the “WIPO Jurisprudential Overview 3.0” (WIPO Overview 3.0), “panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement”.\r\n\r\nIndeed, the Panel has the authority to determine the language of proceedings. In many cases, many WIPO decisions have adopted English as the language of proceedings, even if the registrar's registration agreement was exclusively in Chinese.\r\n\r\nThe Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel's discretion must be exercised judicially in the spirit of fairness and justice to both parties considering matters such as command of the language, time, and costs. It is crucial that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.\r\n\r\nComplainants are not able to communicate in Chinese effectively. Being French entities, the Complainants cannot conduct these proceedings in Chinese without a great deal of additional expense and delay due to the need for translation of the Complaint.\r\n\r\nWIPO Overview 3.0 notably states that “certain scenarios may warrant proceeding in a language other than that of the registration agreement […] (i) evidence showing that the respondent can understand the language of the complaint, […] (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint”.\r\n\r\nThe disputed domain names are a combination of two English words. The Complainants contend this suggests at least an operational understanding of the English language from the Respondent.\r\n\r\nThe English language is not the native language of the Complainants or its representatives. Therefore the Complainants contend that choosing English as the language for the current proceeding would not give them an unfair advantage over the Respondent.\r\n\r\nConsidering the above, the Complainants deem it fair to both parties to conduct the English proceedings, as it is widely recognized as an international language. \r\n\r\n\r\nUnsolicited supplemental submission\r\n\r\nFollowing the Respondent's Response, the Complainant observes that the company's diminutive use for weivoice.com is \"wei\".\r\n\r\nThe Complainants interpret the Respondent's statement that the logic applied to the disputed domain names \"wehealth\" is the same. The same logic would have lead to the registration of \"weihealth\" domain names.\r\n\r\nThe Complainant takes this opportunity to indicate that the domain names \"weihealth\" are available under the TLDs .city, .live, and .life at the time of the present communication.\r\n\r\nThe Complainant is not convinced by the Respondent's arguments and contends that the Respondent had the Complainant's Trademark in mind when registering the disputed domain names.\r\n\r\n\r\nRESPONDENT\r\n\r\nThe Respondent filed his contentions:\r\n\r\n\"Above all, I, Ming Zhang, as the Respondent, have legitimate interests and rights on the disputed domain names. I could not accept the charges of acting in bad faith raised by the Complainant. The main reasons are illustrated as follows.\r\n\r\nFirstly, I am the registered legal person and co-founder of WeiWei Cangqiong (Shanghai) Health Technology Co., Ltd. (hereby as \"Company WWCQ\"), which was registered on August 7, 2020. Company WWCQ is engaged in indoor air purification and disinfection, which relates to indoor air environmental protection. Company WWCQ is jointly set up by Shanghai WeiWei Network Technology Co., Ltd., (hereby as \"Company WWNT\" ) and Shanghai Cangqiong Environmental Protection Technology Co., Ltd. (hereby as\"Company CQEPT\").\r\n\r\nCompany WWNT applied and owned the domain . Using the same linguistic and pronunciation logic of \"weivoice\", \"wehealth\" was developed. This is one of the reasons \"we\" has been adopted as part of the disputed domain names for the newly established Company WWCQ. As mentioned above, the main focus of Company WWCQ is indoor air health products. That is why the word \"health\" is also incorporated. This name \"wehealth\" well represents the mission of the company setup.\r\n\r\nSecondly, based on above-mentioned point, I purchased the disputed domain names: , , . The transactions were done in my name because the company bank account was not set up until September 7, so I purchased the disputed domain names under my name. This is also the reason the webpages are under construction. Company WWCQ is a newly established business as a development of my existing Company WWNT.\r\n\r\nThirdly, the registration and purchasing of the disputed domain names: , , are following formal process via Alibaba cloud website on August 21. The completion of the real name authentication system is evidence of the legitimacy of my purchase. \r\n\r\nFourthly, Company WWCQ is under the process of applying for \"wehealth\" as the trademark. There will be no duplication on the categories falling under the complainant's trademark registered in China.\r\n\r\nTo summarize, as the Respondent, I want to emphasize the purchase of the disputed domain names, which are genuine and legitimate for my business use. The charges raised by the complainant are not acceptable. I reject the complainant's request of transfer of the disputed domain names: , , .\"\r\n", "rights": "To the satisfaction of the Panel, the Complainant has shown that the disputed domain names are identical or confusingly similar to the trademark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).", "no_rights_or_legitimate_interests": "To the satisfaction of the Panel, the Complainant has shown the Respondent to have no rights or legitimate interests in respect of the disputed domain names (within the meaning of paragraph 4(a)(ii) of the Policy).", "bad_faith": "To the satisfaction of the Panel, the Complainant has shown the disputed domain names have been registered and are being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).", "procedural_factors": "Before moving on to the dispute's substance, the Panel must weigh in on a couple of procedural matters.\r\n\r\nThe first matter is a request for consolidation by BIOFARMA SAS and LES LABORATOIRES SERVIER SAS. Both Complainants own their respective trademarks with the term “wehealth” and similarly, both Complainants are part of the Servier Group. The WIPO Overview 3.0 in paragraph 4.11.1 sets forth two considerations when determining the consolidation under a case of multiple Complainants against a single Respondent, namely, a common grievance while respecting equity and procedural efficiency. In this matter, the Complainant advances arguments that are persuasive to the Panel. Both Complainants share trademarks where the dominant term is “wehealth”. Additionally, both parties appear to be related, as both belong to the same corporate group, namely the Servier Group. Because of the above, the Panel does not believe that consolidating both Complainants under single Complaints upsets the careful equitable balance of this proceeding, while at the same time aiding in its procedural efficiency.\r\n\r\nThe Panel also notes that the remedy requested is transferring the disputed domain names to the first Complainant, namely BIOFARMA SAS, if successful.\r\n\r\nThe Panel must now turn to the language of proceedings. It has been confirmed that the language of the registration agreement of the disputed domain names in Chinese; this is the reason why the Complainant requests to have English as the language of proceedings. It is worth noting that paragraph 10 of the UDRP Rules vests Panels with authority to conduct the proceedings in a manner it considers appropriate while simultaneously ensuring both parties are treated with equality. The Complainant makes various arguments in this request, and some of them fall under the guidance provided by the WIPO Overview 3.0 paragraph 4.5.1; namely, 1) there is evidence that the Respondent understands the language of the Complaint; the Response in English further confirmed this; 2) the language of the disputed domain name, particularly where the same as that of the complainant’s mark; 3) potential unfairness or unwarranted delay in ordering the Complainant to translate the complaint and finally, 4) it appears the parties reasonably understand the nature of the proceedings. Having this in mind, the Panel determines English is the language of proceedings in this matter.\r\n\r\nConcerning the Complainant's unsolicited supplemental filing, the Panel notes that no exceptional circumstances are warranting its submission in this case. Furthermore, and to respect due process and equity, the Panel will not be considering the submission. \r\n\r\nThe Panel is satisfied that all procedural requirements under UDRP have been met, and there is no other reason why it would be unsuitable for providing the Decision.", "decision": "Accepted", "panelists": [ "Rodolfo Carlos Rivas Rea" ], "date_of_panel_decision": "2020-11-11 00:00:00", "informal_english_translation": "The Complainants have provided evidence of being the owners of the following trademarks:\r\n\r\nFor BIOFARMA SAS:\r\n\r\n• French Trademark registration WEHEALTH n° 4280290, dated June 15, 2016, covering products in international classes 5, 9, 10, 35, 36, 41, 42, and 44.\r\n\r\n• International Trademark Registration WEHEALTH n° 1329611, dated October 5, 2016, covers products in international classes 5, 9, 10, and 44, notably designating China, India, Russia.\r\n\r\n\r\nFor LES LABORATOIRES SERVIER SAS:\r\n\r\n• European Union Trademark registration WEHEALTH BY SERVIER n° 015850548, dated September 20, 2016, covering products in international classes 5, 9, 10, 35, 36, 41, 42 and 44.\r\n\r\n• French Trademark Registration WEHEALTH BY SERVIER n° 4300433, dated September 19, 2016, covering products in international classes 5, 9, 10, 35, 36, 41, 42 and 44.\r\n\r\n• International Trademark Registration WEHEALTH BY SERVIER n° 1361896, dated November 11, 2016, covering products in international classes 5, 9, 10, and 44, notably designating China, United States, India, and Russia.", "decision_domains": { "WEHEALTH.CITY": "TRANSFERRED", "WEHEALTH.LIFE": "TRANSFERRED", "WEHEALTH.LIVE": "TRANSFERRED" }, "panelist": null, "panellists_text": null }