BIOPLUS SPECIALTY PHARMACY SERVICES, INC. just lost its bid to grab the domain name Bioplus.com after refusing to pay the “exorbitant price of $20,000.00″
Complainant has used the BIOPLUS mark in connection with its specialty service since 1998.
However the mark was not registered with The USPTO until February 11, 2010.
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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 Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(iii), therefore, the Panel declines to analyze the other two elements of the Policy.
The Panel finds that Complainant failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii).
First of all, Respondent has rights or legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii), as a result of Respondent’s registration of the Bio + mark with the Intellectual Property Office of Singapore for Class 3 products, namely beauty and cosmetic goods.
Therefore the Panel finds that Respondent did not register or use the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
The Panel further finds that Respondent has not registered or used the domain name in bad faith in that Respondent has not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
The only evidence offered by Complainant to support its claim of bad faith is the affidavit of Dr. Stephen C. Vogt, President and CEO of Complainant who states “Approximately 4 years ago, I received an email from someone claiming to be the owner of the domain name www.bioplus.com offering to sell the domain name www.bioplus.com to my company for a price in excess of $20,000…”
The “someone” is not named and a copy of the e-mail was not presented in this case.
This evidence is not sufficient to satisfy this Panel that there was such an offer from Respondent. There is no other evidence that respondent has engaged in a pattern of conduct depriving others of the ability to obtain domain names corresponding to their trademarks; that Respondent is a competitor of Complainant seeking to disrupt Complainant’s business; or that Respondent is using the domain name to divert Internet users for commercial gain.…
