Panel says Celgene left important communications out of filing.
A three-person World Intellectual Property Organization panel has found Celgene Corporation (NASDAQ: CELG) engaged in reverse domain name hijacking over the domain name CellGene.com.
Through an intermediary, Celgene tried to buy the domain name in 2018, 15 years after the domain was registered. The domain owner responded with an asking price of $7,500.
The panel determined that Celgene did not prove that the domain owner lacked rights or legitimate interests in the domain name, nor was it registered in bad faith.
It found reverse domain name hijacking because it believes that Celgine tried to mislead it:
…In the Panel’s view, however, there is a more significant issue in the present case, which is that the Complainant has sought to mislead the Panel in accordance with item (iv) in the fourth paragraph of 4.16.
The Complainant claims that it offered the Respondent USD 2,000 for the disputed domain name when it became aware that the Respondent was listing it for sale in September 2018, that the Respondent counteroffered USD 7,500, which was “much more than what the domain should be sold for” and that it was highly likely that the Respondent significantly increased the price when it discovered that the Complainant was interested in the disputed domain name. As mentioned above, the Complainant invoked this counteroffer by the Respondent as evidence that the Respondent registered the disputed domain name in bad faith for the purpose of sale to the Complainant under paragraph 4(b)(i) of the Policy.
In those circumstances, it was incumbent on the Complainant to produce all relevant communications relating to the counteroffer; but it did not do so. The emails included in the factual summary in section 4 above only came to the attention of the Panel at the behest of the Respondent.
Even these emails do not appear to tell the full story, as they include no reference to the initial USD 2,000 offer mentioned by the Complainant. The Panel therefore deduces that this initial offer was made through the Respondent’s website and that, perhaps having received no or an unsatisfactory response, the decision was taken to follow up with the enquiry email of September 11, 2011. Crucially, this email was sent in the name of CSC. It made no mention of the Complainant and indeed gave no indication that CSC was acting for a client rather than on its own behalf (“We are interested in purchasing…”). Thereafter, the Respondent’s broker responded with the counteroffer of USD 7,500.
Accordingly, the communications appear to contradict the Complainant’s version of events and to confirm the Respondent’s assertion that the Complainant never revealed itself in the course of the purchase enquiries. In these circumstances, it is difficult to see how the Complainant can persuasively claim not only that the counteroffer indicated that the Respondent registered the disputed domain name for the purpose of sale to the Complainant but that the Respondent specifically increased its asking price to USD 7,500 when it allegedly discovered that the Complainant was interested in the disputed domain name.
Celgene is a biopharma company that is being acquired by Bristol-Meyers Squibb.
Cozen O’Connor represented Celgene. ESQwire.com represented the domain name owner.