Genzyme
Corporation v. Abadaba
Claim Number: FA0901001244140
Complainant is Genzyme
Corporation (“Complainant”), represented by Lawrence R. Robins of Finnegan, Henderson, Farabow, Garrett &
Dunner, L.L.P., Massachusetts, USA.
Respondent is Abadaba
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <synvics.com>, registered with Naugus Limited, Llc.
The undersigned certifies that he or she has acted independently and impartially and that to the best of his or her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically
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Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 10, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The domain name that Respondent registered, <synvics.com>, is confusingly similar to Complainant’s SYNVISC mark.
2. Respondent has no rights to or legitimate interests in the <synvics.com> domain name.
3. Respondent registered and used the <synvics.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
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On
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Given Respondent's failure to submit a response, the Panel
shall decide this administrative proceeding on the basis of Complainant's
undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the
Rules and will draw such inferences as the Panel considers appropriate pursuant
to paragraph 14(b) of the Rules. The
Panel is entitled to accept all reasonable allegations and inferences set forth
in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc.
v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum
Paragraph 4(a) of the Policy requires Complainant to 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.
Complainant established rights in the SYNVISC mark pursuant
to Policy ¶ 4(a)(i) by its registration of the mark with the USPTO. See
Mattel, Inc. v. KPF, Inc., FA 244073 (Nat. Arb. Forum
The <synvics.com> domain name is
composed of a misspelling of Complainant’s SYNVISC mark (transposing the last
two letters of the mark) and the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of a gTLD
to a misspelling of Complainant’s mark results in confusing similarity pursuant
to Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA
914943 (Nat. Arb. Forum
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima facie case that
Respondent has no rights or legitimate interests in the disputed domain
name. If the Panel finds that
Complainant’s allegations establish such a prima facie case, the burden
shifts to Respondent to show that it does indeed have rights or legitimate
interests in the disputed domain name pursuant to the guidelines in Policy ¶
4(c). The Panel finds that
Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no rights or legitimate
interests in the <synvics.com>
domain name pursuant to Policy ¶ 4(a)(ii).
Since no response was submitted
in this case, the Panel may presume that Respondent has no rights or legitimate
interests in the disputed domain name.
However, the Panel
examines the record in consideration of the factors listed in Policy ¶ 4(c)
before making a final determination as to Respondent’s rights or interests. See Domtar, Inc. v. Theriault.,
FA 1089426 (Nat. Arb. Forum
No evidence in the record suggests that Respondent is
commonly known by the <synvics.com>
domain name. Complainant asserts it has
not granted Respondent any license to use its SYNVISC mark, and the WHOIS
information associated with the domain name registration lists Respondent as
“Abadaba
The disputed domain name is being used to direct Internet
users to a parking website with a list of links to third-party websites that
presumably generate referral fees for Respondent. Using a domain name that is confusingly
similar to Complainant’s mark to direct Internet users to a commercial list of
links is neither a bona fide offering
of goods or services nor a legitimate noncommercial or fair use. Therefore, the Panel finds Respondent does
not have any rights or legitimate interests in the disputed domain name
pursuant to Policy ¶¶ 4(c)(i) or (iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum
Additionally,
Complainant previously held registration of the disputed domain name. Respondent’s registration of a domain name
previously held by Complainant is further evidence that Respondent lacks rights
and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See
Finally, typosquatting occurs when a respondent purposefully
includes typographical errors in the domain name to divert Internet users who
commit the typographical error the domain name takes advantage of. The <synvics.com>
domain name takes advantage of Internet users who mistype Complainant’s SYNVISC
mark by transposing the last two letters.
The Panel finds that Respondent engaged in typosquatting by misspelling
Complainant’s mark in the disputed domain name.
This is further evidence that Respondent does not have rights or
legitimate interests in the disputed domain name pursuant to Policy ¶
4(a)(ii). See LTD
Commodities LLC v. Party Night, Inc., FA
165155 (Nat. Arb. Forum
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Respondent’s use of
Complainant’s SYNVISC mark in
the <synvics.com>
domain name to divert Internet users
to Complainant’s competitors suggests that Respondent registered the disputed
domain name intending to disrupt Complainant’s business. Thereafter, Respondent used the domain name
in an attempt to compete with Complainant using a confusingly similar domain
name that includes in a misspelled version Complainant’s protected mark. The
Panel finds that this is evidence of bad faith registration and use under
Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum
The evidence before
the Panel permits an inference that Respondent receives click-through fees for
diverting Internet users to Complainant’s competitors. Because Respondent’s domain name is
confusingly similar to Complainant’s SYNVISC mark, Internet users accessing Respondent’s disputed domain name may become
confused as to Complainant’s affiliation with the resulting website. Respondent is attempting to profit from this
confusion via the click-through-fees.
Thus, Respondent’s use of the <synvics.com> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex
Drugstore, FA 123933 (Nat. Arb. Forum
Complainant held the registration in the disputed domain name and let
it lapse sometime between March and July 2007.
Respondent’s registration of a domain name previously in Complainant’s
possession is evidence of bad faith registration and use pursuant to Policy ¶
4(a)(iii). See Florists’ Transworld
Delivery, Inc. v. Domain Strategy, Inc., FA 113974 (Nat. Arb. Forum
Further, the Panel finds that Respondent’s engagement in
typosquatting is evidence that Respondent registered and is using the <synvics.com> domain name in bad
faith pursuant to Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini,
FA 190613 (Nat. Arb. Forum
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <synvics.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: March 24, 2009.
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