National Arbitration Forum

 

DECISION

 

Genzyme Corporation v. Robert Brown d/b/a BladeSpray Inc.

Claim Number: FA0701000902965

 

PARTIES

Complainant is Genzyme Corporation (“Complainant”), represented by Lawrence R. Robins, of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., 55 Cambridge Parkway, Cambridge, MA 02142-1292.  Respondent is Robert Brown d/b/a BladeSpray Inc. (“Respondent”), P.O. Box 100, Lambeth Stn., London, ON N6P 1P9, CA.

 

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <simvisc.com>, <symvisc.com>, <syndisc.com>, <synivisc.com>, <synovisc.com>, <synvasc.com>, <synvesc.com> and <synvics.com>, registered with Tucows Inc.

 

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

Kendal C. Reed as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on January 25, 2007; the National Arbitration Forum received a hard copy of the Complaint on January 26, 2007.

 

On January 25, 2007, Tucows Inc. confirmed by e-mail to the National Arbitration Forum that the <simvisc.com>, <symvisc.com>, <syndisc.com>, <synivisc.com>, <synovisc.com>, <synvasc.com>, <synvesc.com>, and <synvics.com> domain names (“Respondent’s Domain Names”) are registered with Tucows Inc. and that the Respondent is the current registrant of these domain names.  Tucows Inc. has verified that Respondent is bound by the Tucows Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On January 30, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 19, 2007 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@simvisc.com, postmaster@symvisc.com, postmaster@syndisc.com, postmaster@synivisc.com, postmaster@synovisc.com, postmaster@synvasc.com, postmaster@synvesc.com, and postmaster@synvics.com by e-mail.

 

A timely Response was received and determined to be complete on February 19, 2007.

 

A timely Additional Submission from Complainant was received and determined to be complete on February 20, 2007. 

 

On February 23, 2007, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Kendall C. Reed as Panelist.

 

RELIEF SOUGHT

Complainant requests that Respondent’s Domain Names be transferred to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

 

Complainant is one of the world’s leading biotechnology companies.  Complainant develops and markets products and services focused on, among other things, orthopedics, cancer, transplant and immune disease, rare inherited disorders, kidney disease, and diagnostic testing. 

 

Complainant owns the mark SYNVISC (“Complainant’s Mark”), which identifies Complainant’s pharmaceutical treatments for osteoarthritis of the knee.  Complainant’s rights in the SYNVISC mark date back to at least as early as October 25, 1985.  Complainant began using the SYNVISC mark in commerce on that date, and acquired common law rights as of that date.   In addition, Complainant owns U.S. Trademark Registration No. 1,418,125 for the SYNVISC mark, with a date of first use on October 25, 1985, filed May 8, 1986, issued November 25, 1986, covering goods in International Classes 5 (pharmaceuticals) and 10 (medical apparatus).  Complainant also owns Canadian Trademark Registration No. TMA340261 for the SYNVISC mark, filed January 16, 1987, issued May 13, 1988, covering pharmaceuticals. 

 

Complainant has made extensive sales of pharmaceutical products bearing the SYNVISC mark.  For example, in 2005 revenues for Complainant’s Synvisc pharmaceutical treatments were $218,000,000.  In 2006, revenues for the Synvisc pharmaceutical treatments were $233,000,000.

 

Complainant widely advertises its Synvisc product in the U.S., and other countries around the world, and has spent many millions of dollars to advertise and promote its SYNVISC mark. 

 

Complainant’s website dedicated to its Synvisc medication is located at the domain name <synvisc.com>, which Complainant registered in November 1997 and which Complainant has used since on or about that date.

 

Respondent registered the Domain Names on April 20, 2004, after Complainant acquired its trademark SYNVISC.

 

Respondent uses the domain names <simvisc.com>, <syndisc.com>, <synivisc.com>, <synovisc.com>, <synvasc.com>, <synvesc.com> and <synvics.com> for a commercial website offering Complainant’s SYNVISC product and the directly competing product ORTHOVISC manufactured by a competitor. 

 

Respondent does not appear to be currently using the domain name <symvisc.com>. 

 

Respondent’s Domain Names are confusingly similar to Complainant’s Mark because these domain names are mere misspellings of Complainant’s Mark, which is not sufficient to create a distinction.

 

Respondent has no right or legitimate interest in Respondent’s Domain Names for several reasons.  Firstly, Respondent is not and has not been commonly know by any of Respondent’s Domain Names.  Secondly, Respondent’s use or intended use of Respondent’s Domain Names for a commercial website offering Complaint’s SYNVSC  product and a product manufactured and sold by Complainant’s competitor does not constitute a bona fide offering of goods or a legitimate noncommercial or fair use of Respondent’s Domain Names under the Policy.  Thirdly, Respondent registered eight domain names, which demonstrates a lack good faith.

 

Respondent acted in bad faith for several reasons.  Firstly, Respondent’s use of Respondent’s Domain Names creates a likelihood of confusion on the part of the buying public as between Respondent and Complainant.  Secondly, Respondent is using Respondent’s Domain Names to resolve to a website on which Respondent is selling a product competitive to Complainant’s product.  Thirdly, Respondent’s registration of eight domain names, each similar to Complaint’s Mark, show a pattern of conduct that amounts to bad faith.  Fourthly, Respondent’s activities constitute “typosquatting.”  Fifthly, Respondent is merely passive holding the <symvisc.com> domain name.

 

 

B. Respondent

 

Respondent does have rights or legitimate interest in respect of Respondent’s Domain Names.  Before receiving any notice of the dispute, Respondent’s Domain Names were and are being used by Respondent in connection with a bona fide offering of goods or services; the websites complained of offer Synvisc, a product manufactured by Complainant, for sale.  The sale of this product is to the benefit of the Complainant.  The website offers consumers another competitive choice for the purchase of the product and offers the Complainant another place for consumers to become familiar with their product, expanding the market for the product.

 

Further, the website is making a legitimate fair use of the domain names, without intent to mislead or divert consumers or to tarnish the trademarks or service mark at issue.  The website that is the subject of the complaint makes no claim to be Synvisc or Genzyme, but merely offers the Synvisc product for sale.  The website makes no attempt to bait and switch consumers to a competitive product.  It simply offers information about each product, along with pricing and ordering information.  The website has clearly visible links at the top of the page stating: “If you are looking for the Synvisc Corporate Site Click Here.”  It was anticipated that some people may be confused.  If their intent is to find the complainant’s website, this intent is accommodated by the link.  The website clearly shows toll free phone numbers and e-mail addresses.  Consumers using these free contact services are never mislead to think that Respondent represents or is the Complainant.  Respondent commonly refers consumers back to the Complainant’s website, if that is what they are looking for.  If customers are simply looking to purchase the product, Respondent tries to satisfy the customers’ requests.  Respondent never implies that the consumer is purchasing directly from the manufacturer.  Respondent always makes it clear that it is a reseller.  As a reseller, it is not surprising that Respondent offer competitive products as well.

 

Respondent did not register and is not using Respondent’s Domain Names in bad faith.  The domain names were not registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to the Complainant, as the alleged owner of the trademark or service mark, or to a competitor of Complainant.  The domain names were not registered in order to prevent the Complainant from reflecting the mark in a corresponding domain name and, in connection therewith, Respondent has not engaged in a pattern of such conduct.  Complainant and Respondent are not competitors and the domain names were not registered by Respondent primarily to disrupt the Complainant’s business.   The domain names were not registered by Respondent in an intentional attempt to attract Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site or location or of a product or service on Respondent’s website or location. The website contains clear links back to Complainant’s website for Internet users that may be confused or are looking for the Complainant’s website.  In this regard, the websites provides a service to Internet users in finding the Complainant’s website.  Other forms of contact through e-mail or telephone, where users are looking to contact the complainant, are willingly accommodated.

 

C. Additional Submissions

 

Nothing in Respondent’s Response refutes Complainant’s initial showing that it is entitled to relief.  In fact, Respondent’s own admissions (either express admissions or failure to deny certain allegations in Complainant’s Complaint) alone are sufficient for Complainant to prevail.  Specifically:

- Respondent does not deny that he registered the domain names <simvisc.com>, <symvisc.com>, <syndisc.com>, <synivisc.com>, <synovisc.com>, <synvasc.com>, <synvesc.com> and <synvics.com> on April 20, 2004 with actual knowledge of Complainant’s rights in its SYNVISC mark, and without Complainant’s authorization;

- Respondent does not deny that the Domain Names are confusingly similar to Complainant’s SYNVISC mark;

- Respondent admits that he knew the Domain Names would confuse Internet users with his statement “It was anticipated that some people may be confused;” and

- Respondent admits that he uses the Domain Names for a commercial website offering competing products. 

Respondent has no rights or legitimate interests to Respondent’s Domain Names.  Respondent’s claims that its use of the Domain Names constitutes a bona fide offering of goods and a fair use are incorrect because (1) Respondent is not authorized by Complainant to use the SYNVISC mark in Respondent’s Domain Names (or otherwise), and (2) the sale of Complainant’s products does not confer on Respondent the right to use Complainant’s Mark in the Domain Names without Complainant’s permission.   Secondly, Respondent’s claim that his registration and use of Respondent’s Domain Names constitute fair use has no basis.  The nominative fair use doctrine permits Respondent and others to indicate in advertising or informational materials in a textual manner that he sells Synvisc pharmaceuticals. 

Respondent’s actions are in bad faith for purposes of the Policy.  Respondent registered and uses the Domain Names for the purpose of attracting Internet traffic through his use of misspellings of Complainant’s SYNVISC mark in the Domain Names, and Respondent admits that it knew that Respondent’s Domain Names would confuse Internet users with his statement “It was anticipated that some people may be confused.”   After attracting consumers interested in Complainant’s Synvisc medication, Respondent subsequently advertises and sells competing products.  This is a classic case of actionable initial-interest confusion.  Even if Internet users who access Respondent’s website subsequently realize that they are not at Complainant’s website, the damage has been done. Further, the initial-interest confusion caused by Respondent’s use of Complainant’s mark in the Domain Names cannot be relieved or excused by Respondent’s provision of a link to Complainant’s <synvisc.com> website because Respondent has already met his goal of attracting Internet users to his website through his use of Complainant’s SYNVISC mark in the Domain Names. 

 

FINDINGS

 

Complainant owns the mark SYNVISC (“Complainant’s Mark”), which identifies Complainant’s pharmaceutical treatments for osteoarthritis of the knee.  Complainant’s rights in the SYNVISC mark date back to at least as early as October 25, 1985.  Complainant began using the SYNVISC mark in commerce on that date, and acquired common law rights as of that date.   In addition, Complainant owns U.S. Trademark Registration No. 1,418,125 for the SYNVISC mark, first used October 25, 1985, filed May 8, 1986, issued November 25, 1986, covering goods in International Classes 5 (pharmaceuticals) and 10 (medical apparatus).  Complainant also owns Canadian Trademark Registration No. TMA340261 for the SYNVISC mark, filed January 16, 1987, issued May 13, 1988, covering pharmaceuticals. 

 

Complainant’s website dedicated to its Synvisc medication is located at the domain name <synvisc.com>, which Complainant registered in November 1997 and which Complainant has used since on or about that date.

 

Complainant has not given Respondent permission to use Complainant’s Mark in Respondent’s Domain Names (or otherwise).

 

Respondent uses the domain names <simvisc.com>, <syndisc.com>, <synivisc.com>, <synovisc.com>, <synvasc.com>, <synvesc.com> and <synvics.com> for a commercial website offering goods for sale, including Complainant’s SYNVISC product and the directly competing product ORTHOVISC manufactured by Complainant’s competitor. 

 

Respondent was not using the domain name <symvisc.com>, and was merely holding this domain name. 

 

Respondent registered Respondent’s Domain Names on April 20, 2004, after Complainant acquired its trademark SYNVISC.

 

Respondent anticipated that some people might be confused about whether its website was the Claimant’s website, and Respondent took the precaution of including a clearly visible link on its website, at the top of the page, stating: “If you are looking for the Synvisc Corporate Site Click Here.”

 

Complainant and Respondent are not competitors with respect to the sale of the Synvisc product to the consuming public as Complainant does not itself sell Synvisc product to the consuming public. 

 

 

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”

 

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2)   the 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.

 

Identical and/or Confusingly Similar

 

This is a threshold question consisting of three parts.  The first part is that the complainant must possess trademark rights in a trademark, whether by way of a national registration or by way of use in commerce.  The second part is that a complainant must have acquired its trademark rights before the respondent obtained its domain name.  And the third part is that the respondent’s domain name must be identical or confusingly similar to the complainant’s trademark.  For purposes of the third part of the test, confusing similarity is determined in a simple side by side comparison of the alpha-numeric symbols of each, as this is how Internet users interface with domain names.  Also, for purpose of the third part of the test, “extraneous” content, such as “www” or “.com,” is removed before the comparison is made.  See Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 Nat. Arb. Forum Dec. 29, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”).  See also America Online, Inc. v. Chun, FA 104974 (Nat. Arb. Forum March 22, 2002) (“The mere addition of a generic term to a famous mark as in the instant case does not create a distinct mark capable of overcoming Complainant’s claim of identical or confusing similarity.”).

 

In this matter, Complainant has trademark rights in the mark SYNVISC, and these rights were acquired on or about October 25, 1985.  This was before Respondent acquired Respondent’s Domain Names, which was on April 20, 2004. 

 

When compared side by side with Complainant’s Mark, and after removing the extraneous matter from Respondent’s Domain Names, this Panel has no difficulty finding that Respondent’s Domain Names are confusingly similar to Complainant’s Mark for purpose of the Policy.

 

As such, Complainant has established this threshold requirement under the Policy.

 

Rights or Legitimate Interests

 

Under the Policy, a complainant has the initial burden to demonstrate a respondent’s lack of rights or legitimate interests in its domain name.  Once this initial burden is carried, and the burden is a light one, it is then incumbent on a respondent to establish that it does have rights or legitimate interests in its domain names.  See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum October 1, 2002) (holding that where the complainant has asserted that the respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting the assertion because this information is “uniquely within the knowledge and control of the respondent.”).

 

Paragraph 4(c) of the policy provides guidance about what constitutes rights or legitimate interest for purposes of Paragraph 4(a)(ii).  Three non-exclusive examples are given, to wit: 

(i)         before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii)        you…have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii)       you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or tarnish the trademark or service mark at issue.

 

In this matter, Complainant has provided facts demonstrating that Respondent has not been known by Respondent’s Domain Names and that Respondent’s intent is for commercial gain.  Respondent has not provided facts demonstrated otherwise.

 

The issue with respect to Paragraph 4(c)(i) as it relates to this matter is whether Respondent’s use of Respondent’s Domain Names for the commercial purpose of reselling Synvisc product constitutes a “bona fide offering of goods…”  Respondent argues that its use of Respondent’s Domain Names is a bona fide effort to legitimately resell Synvisc product.  Respondent argues that is not claiming to be Complainant, and to the extent that there might be some confusion by some customers, which it expects might happen, it has made sure that such customers can readily proceed to Complainant’s website by way of a link prominently placed on Respondent’s website and other contact information for Complainant.  Respondent further argues that not only is it not harming Complainant, but that Respondent is helping Complainant’s sale by providing “…another competitive choice for the purchase of the product and offers the complainant another place for consumer to become familiar with the product, expanding the market for the product.”

 

Complainant argues that Respondent’s use of domain names that are confusingly similar to Complainant’s Mark to sell Synvisc product on the Internet is not a bona fide offering of goods for purposes of the Policy.  Such actions are not within the scope of rights that a reseller has with respect to its efforts to resell product.  This is because, firstly, use by Respondent of a domain name that is confusingly similar to Complainant’s Mark is not reasonably necessary for Respondent to resell Synvisc, and secondly, use by Respondent of a domain name that is confusingly similar to Complainant’s Mark creates the impression of an association between Complainant and Respondent that does not in fact exist.

 

This panel agrees with Complainant.  It is true that Respondent is engaged in a legitimate activity when it offers Synvisc product for sale on its website.  However, such a legitimate activity does not require use of one or several domain names confusingly similar to Claimant’s mark.  See Allen-Edmonds Shoe Corporation v. Takin’ Care of Business, D2002-0799 (WIPO Oct. 10, 2002) (holding that respondent’s use of the domain name <allenedmondsshoes.com> is not protected by the nominative fair use doctrine because respondent’s use of complainant’s trademark as a domain name is not reasonably necessary to allow the resale of complaint’s product by respondent; “To the contrary, [r]espondent could use any domain name at all and still sell [c]omplainant’s product on its website.”).  For example, Respondent could use its own business name as a domain name or, as another example, Respondent could use some sort of descriptive expression that would convey to potential consumers that Respondent sells such products.  Further, it is true that domain names are a form of advertising.  In this sense, the use of a domain name that is similar to a manufacturer’s trademark would seem a logical extension of a reseller’s right to use a manufacture’s trademark to resell the manufacturer’s goods.   However, the Internet is a new and different type of marketing media.  It is very different from newspapers, magazines, radio or television.  In all of these media, any number of merchants can truthfully and legitimately use a manufacture’s trademark to resell the manufacturer’s goods without creating the impression that they are the manufacturer itself or associated with the Manufacturer (beyond being a reseller).  The Internet is different. There can be only one of each domain name in the entire world, and for this reason Internet users are not and cannot be presented with a multiplicity of unassociated resellers at the domain name level.   In the environment of the Internet that is paired down in this way, this Panel believes that a domain name confusingly similar to a manufacturer’s trademark cannot avoid creating the impression that the website owner is the manufacturer or is associated and authorized by the manufacturer. 

 

In this matter, Respondent has attempted to avoid this problem by prominently placing on its website a link redirecting to Complainant’s website and other contact information for Complainant.  In this way, it is made clear to Internet users that there is no association between Respondent and Complainant.  However, this is not sufficient.  In the context of the Internet, the most important moment of confusion is that point in time when an Internet user clicks to a website, called “initial interest” confusion.  A statement on a website that the website owner is not the manufacturer or associated and authorized by the manufacturer comes too late to avoid initial interest confusion.

 

The situation is different with respect to the domain name <symvisc.com>.  This mark is not currently being used.  However, because this domain name is not being used, it is being passively held, which is not a bona fide use.  See Am. Home Prods. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in the domain name <solgarvitimins.com> where the respondent merely passively held the domain name).

 

Complainant has carried its burden and Respondent has not established that it is entitled to the protection of the safe harbor. 

 

Registration and Use in Bad Faith

 

Paragraph 4(b) of the Policy provides guidance about what conduct constitutes bad faith conduct for purposes of Paragraph 4(a)(iii) of the policy.  Paragraph 4(b) provides four non-exclusive examples of bad faith conduct, to wit:

 

(i)                  circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii)                you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a correspondent domain name, provided that your have engage in a pattern of such conduct;

(iii)               you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv)              by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to you web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on you web site or location. 

 

The Panel believes that Respondent did not register or use Respondent’s Domain Names for the purpose of selling them to Complainant.  Respondent registered Respondent’s Domain Names to use them itself for marketing purposes. 

 

This Panel believes that Respondent did not register or use Respondent’s Domain Names in an effort to prevent Claimant from reflecting Complainant’s Mark in a corresponding domain name.  Complainant does have a domain name that consists of Complainant’s Mark, namely <synvisc.com>.

 

This Panel believes that Respondent did not register or use Respondent’s Domain Names for the purpose of disrupting the business of a competitor.  It does not appear that Complainant and Respondent are actually competitors with respect to the sale of Synvisc to the consuming public in that Complainant does not actually sells Synvisc product to the consuming public.  It appears that Complainant sells Synvisc product to others who then resell the product to the consuming public.  The competition is then between and among these resellers.  As between Complainant and Respondent, Respondent’s sales are in line with Complainant’s commercial goals in that every sale by Respondent is a sale for Complainant.

 

With respect to Paragraph 4(b)(iii), the Respondent did register and use Respondent’s Domain Names for the purpose of attracting Internet users to its website for it own commercial gain.  In doing so, Respondent did use domain names that are confusingly similar to Complainant’s Mark.  Because the Internet and the domain name system has a strong aspect of exclusivity as noted above, Respondent’s use of Respondent’s Domain Names necessarily created a likelihood of confusion as to the sponsorship, affiliation, or endorsement of Respondent’s website on the part of the Complainant.  This then, warps or creates the strong likelihood for warping the playing field as between and among the resellers of Synvisc product.  Said another way, by using domain names that are confusingly similar to Complainant’s Mark, Respondents intended and likely did obtain a marketing advantage over other resellers of Synvisc product by creating the impression that its website was sponsored, affiliated or endorsed by Complainant.  As such, Respondent’s actions do constitute bad faith conduct for purposes of Paragraph 4(a)(iii) of the Policy.    

 

It is not sufficient to make acceptable Respondent’s use of domain names that are confusingly similar to Complaint’s Mark that Respondent included on its website a conspicuous link to Complainant’s website and other contact information for Complainant.  Once an Internet user arrives at Respondent’s website with the belief that Respondent’s website is sponsored, affiliated, or endorsed by Complainant, the damage is done.

 

The situation is different with respect to the domain name <symvisc.com>.  This mark is not currently being used.  However, because this domain name is not being used, it is being passively held.  Further, the <symvisc.com> domain name it is one of several domain names that are confusingly similar to Complainant’s Mark and which were used in bad faith.  As such, the <symvisc.com> is also being used in bad faith.  See H-D Michigan, Inc., v. TT&R et al., FA 126650 (Nat. Arb. Forum Nov. 20, 2002) (finding respondent’s passive holding of the domain name <harleydavidon-r-us.com> in bad faith because respondent’s bad faith registration and use of additional domain names permits the inference that any future use of the passively-held domain name would be in bad faith and because the Panel could not imagine a circumstance where respondent could use that domain name in good faith).

 

Complainant has established that Respondent’s Domain Names were registered and used in bad faith.

 

 

 

DECISION

Having established all three elements required under the ICANN Policy, this Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <simvisc.com>, <symvisc.com>, <syndisc.com>, <synivisc.com>, <synovisc.com>, <synvasc.com>, <synvesc.com>, and <synvics.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Kendall C. Reed, Panelist
Dated: March 9, 2007

 

 

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