{
    "case_number": "CAC-UDRP-103691",
    "time_of_filling": "2021-04-06 11:05:22",
    "domain_names": [
        "wehealth.vip"
    ],
    "case_administrator": "  Iveta Špiclová   (Czech Arbitration Court) (Case admin)",
    "complainant": [
        "LES LABORATOIRES SERVIER ",
        "BIOFARMA"
    ],
    "complainant_representative": "IP TWINS",
    "respondent": [
        "li bai xing "
    ],
    "respondent_representative": null,
    "factual_background": "FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:\r\n\r\nFactual and Legal Grounds: \r\n\r\nI. The disputed domain name is identical or confusingly similar to the protected mark\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 in the world. The group is active in 149 countries and employs more than 22,000 people throughout the world. 100 million patients are treated daily with Servier medicinal products and generics.\r\n\r\nWEHEALTH is a department of the Servier group that has been launched in 2016 and 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 <wehealth.fr>, registered on June 8, 2016, and <wehealth.com>. \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 predate the registration of the disputed domain name by the Respondent. \r\n\r\nThe disputed domain name is <wehealth.vip>. The Complainants contend that this domain name is either identical or confusingly similar to the Complainants’ registered trademarks.\r\n\r\nIndeed, the second level of the disputed domain name, “wehealth”, is identical to Biofarma’s registered trademark WEHEALTH. The disputed domain name should also be considered as confusingly similar to the registered trademarks WEHEALTH BY SERVIER, as it is identical to the main 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 a gTLD such as \".vip\", is not significant in determining whether the disputed domain name is identical or confusingly similar to the concerned trademarks: see CBS Broadcasting Inc. v. Worldwide Webs, Inc., Case No. D2000-0834.\r\n\r\nThe Complainants contend that the first requirement under paragraph 4(a) of the Uniform Dispute Resolution Policy is satisfied.\r\n\r\n\r\nII. The Respondent does not have any rights or legitimate interest in the domain name\r\n\r\nThe Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain name for the following reasons:\r\n\r\nFirstly, according to the Complainants verifications, the Respondent is not commonly known by the disputed domain name, which redirects towards an error page.\r\n\r\nThe Complainants’ verification of Google and Baidu search engines did not allow to find any element that would suggest that the Respondent could be known by “We health” or “Wehealth”. \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. \r\n\r\nSecondly, the Complainants research did not allow to find any clue of preparation to use the disputed domain name in connection with a bona fide offering of goods or services. The disputed domain name is currently not used on the web. \r\n\r\nThirdly, the Respondent has never been granted authorization, license or any right whatsoever to use the trademarks of the Complainants. The Respondent is not commercially linked to the Complainants.\r\n\r\nFourthly, since the adoption and extensive use – as it will be demonstrated in section III. of this Complaint – by the Complainants of the trademarks WEHEALTH and “WEHEALTH by Servier” predate the registration of the disputed domain name by the Respondent, the burden is on the Respondent to establish rights or legitimate interests it may have or have had in the domain name. See WIPO Case No. D2003-0174 “PepsiCo, Inc. v. Amilcar Perez Lista d\/b\/a Cybersor”.\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\nConsidering 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 name, 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 name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.\r\n\r\nTherefore, the Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain name.\r\n\r\nThe Complainants contend that the second requirement under paragraph 4(a) of the Uniform Dispute Resolution Policy is satisfied.\r\n\r\n\r\nIII. The disputed domain name has been registered and is being used in bad faith\r\n\r\nThe Complainants contend that the Respondent has registered and is using the disputed domain name 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 very unlikely that the Respondent ignored the rights of the Complainants on the term WEHEALTH. Several press releases, communiqués or news articles have been released on WEHEALTH and “WEHEALTH by Servier” prior to the disputed domain name registration, on an international level, including in China. As an example, 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. \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 name due to a dictionary meaning and\/or a supposed value of “wehealth” as a generic term.\r\n\r\nThirdly, and considering the two above paragraphs, the Complainants strongly believes that the Respondent has registered the disputed domain name primarily for the purpose of selling it to the Complainants, owners of the trademarks WEHEALTH, for valuable consideration in excess of out-of-pocket costs directly related to the domain name.\r\n\r\nFourthly, the Complainants must also demonstrate that the disputed domain name is being used in bad faith.\r\n\r\nThe disputed domain name is 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\nWhile panelists will 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.”\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 in relation to 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 fine distinction, but it is an important one. The significance of 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 name would qualify the Respondent as using the disputed domain name 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 name was registered, has been and is being used in bad faith by the Respondent. The combination of all the elements listed and detailed above show that the Respondent has acted in bad faith when registering and using the disputed domain name, in line with the UDRP doctrine developed under Paragraph 4(a)(iii) of the Policy.\r\n\r\nThe Complainants contend that the Third requirement under paragraph 4(a) of the Uniform Dispute Resolution Policy is satisfied.  ",
    "other_legal_proceedings": "The Panel is not aware of any other legal proceedings which are pending or decided and which relate to the disputed domain name.",
    "no_response_filed": "NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.\r\n\r\n",
    "rights": "The Complainants have, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights (within the meaning of paragraph 4(a)(i) of the Policy).  ",
    "no_rights_or_legitimate_interests": "The Complainants have, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy).  ",
    "bad_faith": "The Complainants have not, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).  ",
    "procedural_factors": "The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.\r\n\r\nThe Complainant requests that the language of this administrative proceeding be English pursuant to UDRP Rule 11(a): Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. Complainant makes this request in light of the potential Chinese language Registration Agreement of the disputed domain name involved at this Complaint.\r\n\r\nParagraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case. UDRP panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios were summarized into WIPO Jurisprudential Overview 3.0, 4.5.1. In this particular instance, the Complainant tried to request change of languages of proceedings in light of Chinese language Registration Agreement by showing that 1) having the Complainant translating subsequent communications in Chinese would entail significant additional costs for the Complainant and unnecessarily burden the Complainant; 2) disputed domain name <wehealth.vip> is formed by a combination of two English words, which creates a prima facie presumption that the Respondent at least demonstrates some working knowledge of English. Relevant decisions have been cited to support the Complainant’s positions. In light of the scenarios and the possible additional burden falling on the Complainant having to translate the case into Chinese, without further objection from the Respondent on the issue, the Panel will proceed to issue the decision in English.",
    "decision": "Rejected",
    "panelists": [
        "Carrie Shang"
    ],
    "date_of_panel_decision": "2021-05-15 00:00:00",
    "informal_english_translation": "The Complainants are, inter alia, 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, covering products in international classes 5, 9, 10 and 44, notably designating China, India and 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.\r\n\r\n\r\nThe Complainant BIOFARMA is also the registrant of the domain names <wehealth.fr>, registered on June 8, 2016, and <wehealth.com>.\r\n\r\nOn the web, the Trademark WEHEALTH enjoys a dedicated website, accessible at the address https:\/\/www.wehealth-digitalmedicine.com\/.  ",
    "decision_domains": {
        "WEHEALTH.VIP": "REJECTED"
    },
    "panelist": null,
    "panellists_text": null
}