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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pharmacia & Upjohn Company v. Thomas Habif
The Complainant in this administrative proceeding is Pharmacia & Upjohn Company, a Delaware corporation located in and doing business at 100 Route 206, North Peapack, New Jersey, 07977, U.S.A.
The Respondent is Thomas Habif, whose address is 330, Borthwick Ave., IMM, Portsmouth, New Hampshire 03801, U.S.A.
2. Domain Name and Registrar
The domain name in dispute is as follows: <cleocint.com>. The domain name was registered by Respondent with Network Solutions, Inc. (NSI) on December 13, 1999.
3. Procedural Background
On March 22, 2001, the WIPO Arbitration and Mediation Center ("WIPO") received from Complainant a complaint for decision in accordance with the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation of Assigned Names and Numbers (ICANN) on August 26, 1999, ("Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (Supplemental Rules).
The Complaint was filed in compliance with the requirements of the Rules and the Supplemental Rules, payment was properly made, the administrative panel was properly constituted, and the panelist submitted the required Statement of Acceptance and Declaration of Impartiality and Independence.
The instant Administrative Proceeding commenced on March 29, 2001.
Respondent failed to file a response and a Notification of Respondent’s Default, dated April 20, 2001, was sent by WIPO to Respondent.
The decision of the Panel was due to WIPO on or before May 8, 2001.
4. Factual Background
Complainant Pharmacia & Upjohn, a research-based pharmaceutical company, developed prior to 1960 an antibiotic for various purposes. The generic name for such product is "Clindamycin." Pharmacia & Upjohn has used and is currently using the trademark CLEOCIN T for its brand of clindamycin topical solution. The mark CLEOCIN T is the subject of U.S. Trademark Registration No. 1295606, which issued in September 1984. The mark is also the subject of Benelux and Thailand registrations. See Complaint, Annex C.
As noted above, Respondent registered the domain name <cleocint.com> with NSI in December 1999. Respondent's <cleocint.com> website is inactive.
In a series of communications, dated August 24, 2000, October 10, 2000, and October 20, 2000, Complainant requested that Respondent transfer the domain name in dispute and offered to assist in the transfer process. Respondent did not reply to any of these communications. See Complaint, Annex D.
5. Parties' Contentions
Complainant contends that the domain name <cleocint.com> is identical or confusingly similar to the mark CLEOCIN T, in which Pharmacia & Upjohn has rights, and that Respondent has no rights or legitimate interests in respect of the domain name since Complainant has not agreed or consented to Respondent's use or registration of the disputed domain name.
Complainant further argues that the domain name should be considered as having been registered and used in bad faith because: (1) the mark CLEOCIN T is known to be a mark of Pharmacia & Upjohn, a fact that Respondent had constructive notice of, (2) Respondent has refused to cooperate with Complainant to resolve the instant dispute; (3) by registering the domain name <cleocint.com>, Respondent has precluded Complainant from using its mark in a corresponding domain name; and (4) persons may become discouraged upon reaching Respondent's inactive website and search no further for Complainant's website.
6 Discussion and Findings
The Panel has carefully reviewed the evidence presented and determines that Complainant clearly has met all the requirements set forth in para. 4.a. of the Policy.
First, there is no question that the domain name in dispute is identical or confusingly similar to Complainant's CLEOCIN T mark. The inclusion of the top-level domain name .com in Respondent's domain name and the omission of the space between the letters "N" and "T" (a fact dictated by Internet protocol) are without legal significance.
It is also clear that Complainant, through its use and registration of its CLEOCIN T mark, has rights in the mark.
Further, the Panel determines that Respondent has no rights or legitimate interests with respect to the domain name, within the meaning of para. 4.c. of the Policy. As noted above, Respondent’s <cleocint.com> website is not active; thus, it is clear that Respondent is not using the domain name in connection with the bona fide offering of goods or services. There also is no evidence that Respondent is commonly known by the domain name or that any use is noncommercial or "fair."
Finally, the Panel finds evidence of the requisite "bad faith" registration and use of the domain name. Respondent's "passive" holding of the domain name, coupled with Respondent's failure to respond to any of Complainant's communications, provides support for a determination of "bad faith" registration and use. See Telstra Corp. Ltd. v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (February 18, 2000).
In view of the above, the Panel grants Complainant's request for transfer to it of the domain name <cleocint.com>.
Jeffrey M. Samuels
Dated: May 3, 2001