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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Laboratoire Pharmafarm (SAS) v. M. Sivaramakrishan
Case No. D2001-0615
1. The Parties
The Complainant is Laboratoire Pharmafarm of 46, rue Boissière – 75116 Paris, France, represented by Baker & McKenzie, Paris office. The Respondent is M. Sivaramakrishan of 11/1 Amara Apt, Soi Amorn 3, 49 9 Sukhumvit, Bangkok, 10110, Thailand.
2. The Domain Name and Registrar
The disputed domain name is <pharmafarm.com> and the Registrar is Signature Domains, Inc., of Miami, Florida, U.S.A.
3. Procedural History
This is an administrative proceeding pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999, the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999 ("the Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules") of the WIPO Arbitration and Mediation Center ("the Center").
The Complaint was received by the Center in hardcopy on April 30, 2001, and by e-mail on May 3, 2001. The Complaint was acknowledged on May 3, 2001, when registration details were sought from and confirmed by the Registrar. On May 10, 2001, the Center satisfied itself that the Complainant had complied with all formal requirements, including payment of the prescribed fee. That day, the Center formally notified the Respondent by post/courier and email of the Complaint and of the commencement of this administrative proceeding and sent copies to the Complainant, the Registrar and ICANN.
The last day specified by the Center for a response was May 29, 2001. A Response was filed by email on May 22, 2001, and in hardcopy on May 28, 2001. Receipt of the Response was acknowledged by the Center on May 23, 2001. On June 4, 2001, the Center notified the parties of the appointment of Alan L. Limbury to serve as panelist, Mr. Limbury having submitted a Statement of Acceptance and Declaration of Impartiality and Independence. That day, the Center transmitted the case file to the panel and notified the parties of the projected decision date of June 18, 2001.
The language of the proceeding was English.
The panel is satisfied that the Complaint was filed in accordance with the requirements of the Rules and Supplemental Rules; payment was properly made; the panel agrees with the Center’s assessment concerning the Complaint’s compliance with the formal requirements; the Complaint was properly notified to the Respondent in accordance with paragraph 2(a) of the Rules; the Response was filed within the time specified by the Rules and the administrative panel was properly constituted.
4. Factual Background
The Complainant is a French limited liability corporation created in January 1986 and absorbed in 1999 by another French limited liability corporation Pharmasol, created in 1995, which adopted the corporate name Laboratoire Pharmafarm. The Complainant manufactures and sells in France and around the world pharmaceutical products.
The Complainant is the owner of and uses the following trademarks, registered in France:
- PHARMAFARM: n°1 381 013 filed in 1986 and renewed in 1996 for products and services in classes 5, 10 and 42 including pharmaceutical products, dietetic products for children and sick persons, instruments and surgical, medical and dental apparatus and engineering services in the medical and pharmaceutical field.
- PHARMAFARM: n°96605885 filed in 1996 for soaps, oils, hair lotions, cosmetics and toothpaste in classes 3 and 5.
The disputed domain name was registered on April 5, 2000. The Complainant had not authorized the use of its trademarks nor the registration of the disputed domain name.
5. Parties’ Contentions
1) The disputed domain name is identical to the trademarks in which the Complainant has rights;
2) The Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain name.
There are no relations between the Respondent and the Complainant. The Respondent is not a licensee of the Complainant, nor has he otherwise obtained any authorization to use the Complainant's trademarks. The Respondent is not commonly known by the disputed domain name, which has no particular meaning.
3) The disputed domain name should be considered as having been registered and used in bad faith for the following reasons:
the circumstances indicate that the domain name was registered or acquired primarily for the purpose of selling the domain name registration to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the domain name registrant’s out-of-pocket costs directly related to the domain name.
(i) The Respondent has no web site attached to the domain name <pharmafarm.com>. The Respondent is offering the domain name for sale. He first offered the domain name <pharmafarm.com> for sale on the web site www.urlmerchant.com. Then the domain name has been offered for sale on the web site www.greatdomains.com. The Complainant submitted an offer of US$ 400 but was notified that the minimum amount requested is US$300 000.
(ii) The internet partner of the Complainant, who registered the domain names <pharmafarm.net> and <pharmafarm.org> on behalf of the Complainant, was contacted by the Respondent by e-mail. The Respondent offered to the Complainant's Internet partner to buy [sic] the domain name <pharmafarm.com>.
(iii) The Respondent is likely to have registered many domain names in order to sell them or to attract for financial gain Internet users by creating a likelihood of confusion as to the source of web sites for the following reasons:
the Respondent registered the domain name <21st-century-box.com>, which is confusingly similar to the well known 21st Century Fox.
The above circumstances establish bad faith registration and use.
The domain name registered by me as <pharmafarm.com>, saving the dot com extension is similar or identical to the trade mark of the Complainant. At the time of registration of the domain name I was not aware that "pharmafarm" trademark or a company in the name of Laboratoire Pharmafarm existed.
Now I learn from the Complaint that the Complainant owns trade mark rights to "Pharmafarm" in France. I believe that their trade marks rights and business classification are restricted or limited to France, while a web name will have a global address and presence.
I am not clear about Complainant’s worldwide rights of their trade mark "Pharmafarm". Have they registered their trademark worldwide to claim worldwide representation?
Unlike well known names like Coca-Cola, IBM, Bayer, Pfizer for example, the pharmafarm trade mark does not have a global presence and a web name will surely give the pharmafarm trademark the needed edge in the global market place.
The product classifications given in the trade mark registration do not include services of internet portal like information about pharmacy products, proprietary and non proprietary, medicine, different types of medical treatment, expert's opinion, a chat club for internet users. The internet portal that I have in mind to develop, will cover all these areas of business.
I do not agree with the Complainant’s assertion that I should be considered as having no rights or legitimate interests in respect of the domain name.
As a registrant of the domain name, I believe I have rights to the domain name until and unless it is proved otherwise. As a creator of this domain name, I have no idea or intention to sell products online whether it is pharma, health, body care related products or services. What I have in mind is only portal business. Advertisement will be its main revenue. The development of the site needs logistic and financial support and therefore is delayed at the moment. Therefore I have a much long term interest in the domain name.
I did not know about the Complainant until I received the letter from Complainant’s attorney Baker & McKenzie Paris. So the matter of my relation with the Complainant does not arise.
I am not engaged in the business of pharma or medical products and therefore I do not need a license of Complainant or authorization to use Complainant’s trade mark.
I am an individual. Individuals are known by their names, not by their dot com names. I am just a registrant of a domain. I would like to be referred, by my name only, as M.Sivaramakrishan. Well, this can be an exception to legends who have become entities (Eg. Dupont, Rockfellers, Kennedys). I am not, there in their league yet, and therefore, I am not, commonly known as <pharmafarm.com>.
The domain name has a meaning: "Pharma" - a shortform for pharmaceuticals / medicine. & "Farm"- a word in the dictionary.
Pharma business as a portal service was visualized by a group of young enterprising programmers, with whom I had informal meetings. I used to call this group including myself and my son as " idea farm"or " thought farm." Later I picked up the coinage of the pharmafarm name from this idea, a sort of fusion.
Pharma for pharmaceuticals or medicine and (Thought) Farm for the people.
The word farm therefore has a wider meaning to me where seeds of thought get planted, developed, and the yield harvested for mutual benefit. A result of mind mapping process.
The Complainant asserts that the word has no particular meaning. I have no comments on this.
Good faith or bad faith
I registered <pharmafarm.com> with Signature Domains on 2000-04-05.
The name was selected after few mind mapping sessions and group discussions with my friends. There is no definition of pharmafarm in the English Lexicon. It is a combination of "pharma", short form, for pharmaceuticals or medicine and the word "farm" which is found in the dictionary. I used to refer my idea group as "thought farm" or "idea farm". Pharmafarm was born out of this wedlock (pharma + farm). While registering the name, I never had any idea or knowledge as to the existence of pharmafarm trade mark or the Complainant company or their origin. The domain name that I applied as <pharmafarm.com> was available with the Registrar. So in all good faith, I registered the name as a top level domain name.
The domain once developed as a site, will serve as an information portal or web highway for pharma care, health care, body care, baby care related issues, products, discussion on various topics of medical treatment, medical practices etc. As a registrant I have visualized <pharmafarm.com> as an information database, an archive for medicine, a forum for opinions on health issues serving millions in the internet. I was aware that the effort will involve huge resources of time, money and people. Schedules may get extended. I expect the website launch sometime next year (Sep. 2002).
The internet is open for all, the Complainant or their competitors need not feel left out. <pharmafarm.com> will welcome them all irrespective of their geographical locations.
My submissions to the panel
My listing of <pharmafarm.com> with URL or Great Domains is part of a two pronged strategy: firstly the web name will get good exposure before site launch pad for a good 18- 24 months. This will involve minimal or no cost (Marketing Strategy). Secondly, because the listed price is kept high, only serious investors will be willing to take part or invest in our project. (Financial / Investment Strategy)
My predicament while listing was that, because of their nature of business, the domain business agents (Great Domains) had only buyer and seller options. Obviously I have to choose the latter. It is my strong belief that any serious prospective investor or buyer of my domain will enter into negotiations with me for value, site development, marketing of the site, and management of the site.
The Complainant states that they offered US$ 400 but was advised about the minimum bid by Great Domains. I was not aware of this offer. Since I did not know about the Complainant, I did not have any private contact with Complainant. Annexure 5, document 6 of the Complaint is not clear in this connection. It does not state when the offer was made or who was the offeror. The document needs verification.
Besides Great Domains may have a policy to consider that the offer is not serious enough even to meet minimum listing. Normally domain brokers do not inform registrants if the offer is not serious in their estimation. I do not have any information from Great Domains about this offer, either.
The Complainant referred about out of pocket expenses somewhere in their Complaint.
That is to cover the initial registration expenses. My out of pocket expenses are as under:
|(i) Registration with Signature Domains for two years (approx) ||65 |
|(ii) Listing in Great Domains (approx) ||40 |
|(iii) My travel at least on four occasions to India since Oct’99-till date, travel in Thailand, for information, refreshment provided to groups, informal discussion with site programmers the expense of which equals|
|US$ 7005 to date (approx)||7005|
|(iv) My time on this project about 600 hours ( invaluable)|
If I consider time as money , we can fix a value
|Pocket expenses up to 30/04/2001||7110 + ?|
I do not maintain expense books for this. I started <pharmafarm.com> with my two years saving of US$ 9,000 (approx.)
As to Mr. Daniel Diu of Images et Technologie, my contact with him happened like this. I registered my domain name <pharmafarm.com> on 2000-04-05 with Signature Domains.
It is a normally good practice to check a registered name in the who’s who database (any domain services) on a regular basis. This serves two purposes.
(i) There are grounds for security break in computer for passwords or codes. As a result, a registrant may loose his dot com name, if his security codes are broken. For example, theft of credit card numbers, hacker strikes are very common.
These are real problems, which cannot be overlooked. The threat is there and so the need for checks.
(ii) As domain registries allow similar names on other top level domains (tld) and/or secondary level domains ( sld ) a top level tld may lose its value.
For e.g. : <pharmafarm.com> vs. <pharmafarm.net>, <pharmafarm.org>
This presents competition among web names.
At a particular point of time, around Sep-2000/Oct-2000 I just checked for <pharmafarm.com> in the who’s who database, which showed interestingly the existence of <pharmafarm.net> and <pharmafarm.org> and the site indicated that one Mr. Daniel Diu of Images et Technologie as registrant. For information,
<pharmafarm.com> was registered on April 04, 2000
<pharmafarm.org> was registered on June 06, 2000
<pharmafarm.net> was registered on August 08, 2000
Since I felt that there are two more names to compete with my web name, the chance of developing and marketing a web site would get diluted in value and strength and hence made a business enquiry about his interest. My interest was genuine then and still remains genuine, till today.
At this point I could not have imagined that Mr. Daniel Diu of Images et Technologie was acting for his principals Laboratoire Pharmafarm. That is news to me now, as I read from the assertion made by the Complainant claiming that Mr. Daniel Diu of Images et Technologie as their internet partner.
All the emails to Mr. Daniel Diu were all in good faith and never in one instance did I try to take advantage to click a crude sale of domain name. There is no reason, as to why, I should write about all my domain names to Mr. Daniel Diu. But as per his request, I wrote to him about other domain names and listed categories. All in good faith on my part as I am very well aware that any business or association formed on bad faith will not survive but will only harm partners in business.
In all these days Mr. Daniel Diu of Images et Technologie did not write to me about his partnership with Complainant or about the Complainant, or give me a chance to know about Laboratoire Pharmafarm, his principal. Is this good faith or bad faith? I am the affected person here.
The Complainant finally cites one of my web name <21st-century-box.com> which was not offered for sale. I can recall that this was my first maiden attempt, to learn about domain registration. This name too, was based on an idea that we develop[ed], keeping in view the coming millennium and its happenings. I wanted to develop a "Time Capsule" for 21st Century, or a registry for the millennium. (21st Century in a box).
The Complainant from somewhere got hold of 21st Century Fox, maybe a new trademark of Fox Films. Not yet well known. Perhaps the Complainant had in mind the movie moghuls of 20th Century Fox. I was nearly foxed on this. I am sorry. I am totally perplexed with this comparison of box with fox. It is like a "blind person, looking for a black cat, in the dark room, which is not there." There are many foxes out there with dot com tails. For consolation the Complainant can look at the dot com site which bears 21st Century Fox name. What one will get is eggs & cheese and a napkin to wipe. (It is really interesting to see the site). I do not know the purpose of this point in exercise, which is frivolous and time wasting. All to prove bad faith? A good Fox hunting, I would say.
Further that after I registered <21st-century-box.com>, I noticed many sites offering similar millennium capsules/ideas which would be bombarding the poor internet fellows and confusing anyway. So the name <21st-century-box.com> was born dead. A good experience for me to spend US$ 70 of my good money for nothing. The name since had expired in March 2001. This 21st Century treasure box in still available unclaimed in the remote corners of domain registry. Anybody can have it registered for less than what I paid for after de-activation period.
Request for finding reverse domain name hijacking
After I received the Complaint from the attorneys of the Complainant, I conducted a search of the who’s who database for domains which reveals a pertinent information on which the Complainant is silent. The Complainant had already registered a domain under <laboratoirepharmafarm.com> on 2000-01-28, bearing the registered business address of the Complainant. (I came to know this from my search on 2001-05-06). I did not stop them, or attempt to stop them from registering "pharmafarm" as a domain name on 2000-01-28 or until 2000-04-04. They had all the time in their hands.
The registration of the above name had been done well before <pharmafarm.com>. I registered <pharmafarm.com> on 2000-04-05.
The Complainant or their internet partner knew both the above facts. It may please be noted that there was an interval of 68 days between the two registration dates. This shows that the Complainant or their internet partner did realize on a later date that they have failed to register <pharmafarm.com> in time which could have blocked my successful registration in the first place. And, it would have saved all the bother that we are going through now.
The Complainant therefore had failed, or overlooked the registration process, or for unexplainable reasons they simply did not register the name on time or probably they were not interested in the name "pharmafarm", for their own stated reason, that the name has, no particular meaning. The Complainant realizing their lapse, subsequently, possibly, had asked their internet partner to register <pharmafarm.org> and <pharmafarm.net> on a much later date.
My first letter to Mr. Daniel Diu of Images et Technologie was open ended, just expressing business interest in good faith. Since they had registered secondary level names, I made an enquiry to know their interest. This can be anything, may be I buy their names or they buy mine, or we work together on a common program like concept, site development, or explore internet related business. The choices are wide.
Mr. Daniel Diu of Images et Technologie wrote to me on November 30, 2000 stating that he would like to purchase the name and asked me to propose the cost and also expressed interest in other domain names. This was the first and only email from him.
I wrote back to Mr. Daniel Diu about placement of my domain names with Great Domains,and later sent a list of names as per his request. Also sent him New Year Greetings in good faith this year. All emails were in good spirit.
Mr. Daniel Diu did not write to me (after his first email ) for my emails mentioned above. Neither he divulged any information of his partnership with the Complainant or about the Complainant any time.
The Complainant could not acquire the domain for their price from Great Domains and felt that the weapon of bad faith can be effectively used to get at the original registration of <pharmafarm.com>. It is the fox story once again, but here, the fox does not get the grapes, and so, the grapes turn sour.
Mr. Daniel Diu’s request for other domain names was not for business interest, but in bad faith. The question of bad faith being raised by the Complainant is therefore part of a plan to deny the registrant the legitimate ownership of the domain name.
In all fairness, without prejudice to Complainant [sic], I would request a reverse finding on this matter before the learned panel member.
6. Discussion and Findings
To qualify for cancellation or transfer, a Complainant must prove each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Identity or confusing similarity
The Respondent concedes that, but for the dot com extension, the disputed domain name is identical to the Complainant’s trademark.
Many cases under the Policy and under US trademark law have held that "essential" or "virtual" identity is sufficient for the purposes of the Policy: see The Stanley Works and Stanley Logistics, Inc v. Camp Creek. Co., Inc. (WIPO Case No. D2000-0113), Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corporation v. S&S Enterprises Ltd. (WIPO Case No. D2000-0802) and Nokia Corporation v. Nokiagirls.com a.k.a IBCC (WIPO Case No. D2000-0102).
For a typical US case see Sporty’s Farm L.L.C. v. Sportsman’s Market, Inc., 202 F.3d 489, 497-98 (2d Cir. 2000) (the differences between the trademark "sporty’s" and the domain name <sportys.com> – specifically, an apostrophe in the trademark and the addition of .com in the domain name – are "inconsequential," such that the domain name is "indistinguishable" from and "certainly ‘confusingly similar’ to the protected mark").
The test of confusing similarity under the Policy, unlike trademark infringement or unfair competition cases, is confined to a consideration of the disputed domain name and the trademark: AltaVista Company v. S.M.A., Inc. (WIPO Case No. D2000-0927); Gateway, Inc. v. Pixelera.com, Inc (formerly Gateway Media Productions, Inc.) (WIPO Case No. D2000-0109).
The Panel finds the disputed domain name and the Complainant’s trademarks are virtually identical and are confusingly similar.
The Respondent’s statements on this topic do not go so far as to demonstrate that he has rights or interests in the disputed domain name, as contemplated by paragraph 4(c) of the Policy. The Respondent refers to a portal business that he "ha[s] in mind" but shows no demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services. He says he has no idea to sell products online "whether it is pharma, health, body care related products or services." He refutes any suggestion that he is known by the domain name. He concedes the development of the site is delayed at the moment and accordingly shows no use that may be described as legitimate or noncommercial.
Despite the failure of the Respondent to demonstrate legitimacy, the onus remains on the Complainant to show the absence of any rights or legitimate interests in the disputed domain name on the part of the Respondent. In State Farm Mutual Automobile Insurance Company v. Rocky E. Faw (NAF Case No. FA94971) the Respondent was found to have no legitimate interests in respect of the domain name where he had not used nor developed the domain name for a legitimate non-commercial or fair purpose and was not using the domain name in connection with a bona fide offering of goods or services. See also Leland Stanford Junior University v. Zedlar Transcription & Translation (NAF Case No. FA94970).
The Policy provides a mechanism for cancellation or transfer of registered domain names even though the requirements of the Registrar have been complied with and even though the required fees have been paid. The Respondent’s registration was subject to the dispute resolution policy of the Registrar, which incorporates the Policy. Accordingly, contrary to the Respondent’s submission, due registration and payment of fees do not determine ownership.
The panel finds the Complainant has discharged its onus by showing that it has not authorized the Respondent to use its trademark as a domain name. The panel finds the Respondent has no rights or legitimate interests in the disputed domain name.
Bad faith registration and use
Paragraph 4(b)(i) of the Policy provides, non-exhaustively, that it is evidence of bad faith registration and use if there is proved registration primarily for the purpose of profiting from sale, rent or transfer to the trademark owner or its competitor for more than the documented out-of pocket costs directly related to the domain name. An offer, subsequent to registration, to sell at a profit may evidence registration for that purpose, but this is not necessarily so: Maureen A. Healy v. Andreas Kuhlen (WIPO Case No. D2000-0698); The World Phone Company (Pty) Ltd. v. Telaccount Inc. (WIPO Case No. D2000-1163).
The Respondent calculates his out-of-pocket expenses, including travel costs, at over US$7,000, plus the value of about 600 hours of his time. However, travel costs and the value of time spent contemplating the development of a website are not directly related to the domain name. The panel finds the direct out-of-pocket expenses related to the domain name were US$65, being the registration costs for two years.
Whatever the Respondent might have had in mind in listing the disputed domain name with www.urlmerchant.com and www.greatdomains.com, he must be taken by so doing to have offered the name for sale to anyone. The Respondent says he kept the listed price high in order to attract only serious investors for his project. Although the Respondent intended only to seek good exposure and to attract serious investors, the offers made by www.urlmerchant.com and by www.greatdomains.com were to sell the disputed domain name to anyone prepared to meet the asking price set by the Respondent.
It appears to be common ground that the disputed domain name was listed on www.urlmerchant.com before it was listed on www.greatdomains.com. By December 13, 2000, the domain name was listed on www.greatdomains.com (Complaint, Annex 5, document 5). Document 6 in that Annex shows an offer for US$400 for the disputed domain name on www.greatdomains.com and the response "You offered $400. The minimum offer amount for this listing is $300000. Please make an offer greater than or equal to this amount". There is no evidence as to the date of this exchange of messages, but it may be inferred that this minimum offer amount was placed on the domain name at the time of listing with www.greatdomains.com.
The Respondent had no knowledge of the Complainant until the Complaint was made and no knowledge of the Complainant’s $400 offer. Nevertheless, the Respondent accepts that www.greatdomains.com is a "domain business agent." The panel concludes that www.greatdomains.com acted as the Respondent’s agent in placing a minimum offer price of US$300000 on the disputed domain name and in communicating that price in response to the offer of $400 made by the Complainant. Likewise that www.urlmerchant.com acted as the Respondent’s agent in placing a minimum bid of US$750 on the disputed domain name.
The panel finds that, within 8 months of registration, the Respondent, having in the meantime made no use of the disputed domain name, offered to sell it through his agents www.urlmerchant.com and www.greatdomains.com to anyone prepared to pay his asking price, being a price in excess of his out-of-pocket expenses directly related to the domain name.
Offers to sell to the public at large domain names that are identical or confusingly similar to marks of others may constitute bad faith within the meaning of paragraph 4(a)(iii) of the Policy. This is based on the nonexhaustive character of the express list of bad faith factors in paragraph 4(b) of the Policy, and the lack of a justification for awarding financial gain to persons for the mere act of registration of the marks of others: United Feature Syndicate, Inc. v. All Business Matters, Inc. (aka All Business Matters.com) and Dave Evans (WIPO Case No. D2000-1199). See also Alloy Rods Global, Inc. v. Nancy Williams (WIPO Case No. D2000-1392); Dell Computer Corporation v. Alex and Birgitta Ewaldsson (WIPO Case No. D2000-1087); eBay Inc. v. G L Liadis Computing, Ltd. and John L. Liadis d/b/a G L Liadis Computing Ltd. (WIPO Case No. D2000-1463).
"The sole fact that the disputed domain names have been registered by a person that does not use them but publicly offers them for rent or sale is the most perfect evidence of a bad faith activity in prejudice of Internet community and of the owner of the trademarks used as domain names": TV Globo Ltda. v. Radio Morena (WIPO Case No. D2000-0245).
The panel finds the Respondent in this case registered the disputed domain name primarily for the purpose of selling it to anyone prepared to pay a price exceeding his direct costs related to the domain name. The panel finds this to amount to bad faith registration.
No use has been made of the disputed domain name other than to offer it for sale. The ‘use’ requirement has been found not to require positive action, inaction being within the concept: Telstra Corporation Limited v. Nuclear Marshmallows (WIPO Case No. D2000-0003); Barney’s, Inc. v. BNY Bulletin Board (WIPO Case No. D2000-0059); CBS Broadcasting, Inc. v. Dennis Toeppen (WIPO Case No. D2000-0400); Video Networks Limited v. Larry Joe King (WIPO Case No. D2000-0487); Recordati S.P.A. v. Domain Name Clearing Company (WIPO Case No. D2000-0194) and Revlon Consumer Products Corporation v. Yoram Yosef aka Joe Goldman (WIPO Case No. D2000-0468).
The panel finds that the disputed domain name, through being listed for sale on www.urlmerchant.com and www.greatdomains.com, is being used in bad faith.
As to clause 4(b)(ii), registration of a domain name prevents the trademark owner from reflecting that mark in a corresponding domain name. Registering a domain name for such a purpose is evidence of both bad faith registration and use provided there has been a pattern of such conduct. The fact that the Respondent registered one other domain name which he does not intend to use does not establish a pattern of such conduct: see Home Interiors & Gifts, Inc. v. Home Interiors (WIPO Case No. D2000-0010); Ingersoll-Rand Co. v. Frank Gully, d/b/a Advcomren (WIPO Case No. D2000-0021); Bellevue Square Managers, Inc. v. Web (WIPO Case No. D2000-0056) and William Hill Organization Limited v. Fulfillment Management Services Limited (WIPO Case No. D2000- 0826).
Reverse Domain Name Hijacking
Paragraph 1 of the Rules defines reverse domain name hijacking as "using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name." See also Paragraph 15(e). To prevail on such a claim, a Respondent must show that the Complainant knew of the Respondent’s unassailable right or legitimate interest in the disputed domain name or the clear lack of bad faith registration and use, and nevertheless brought the Complaint in bad faith. See, e.g., Sydney Opera House Trust v. Trilynx Pty. Ltd. (WIPO Case No. D2000-1224) and Goldline International, Inc. v. Gold Line (WIPO Case No. D2000-1151). There is no such evidence here and this claim must be rejected.
Pursuant to Paragraphs 4(i) of the Policy and 15 of the Rules, the panel directs that the domain name <pharmafarm.com> be transferred to the Complainant.
Alan L. Limbury
Dated: June 6, 2001