The disputed domain names are on their 2nd level domain identical to the trademark Lexapro of the Complainant. The Panel therefore considers the disputed domain name to be confusingly similar to the trademarks in which the Complainants have rights in accordance with paragraph 4(a)(i) of the Policy.
The Complainant’s assertions that the Respondent is not commonly known by the disputed domain names and is not affiliated with nor authorised by the Complainant are sufficient to constitute a prima facie showing of absence of rights or legitimate interest in the disputed domain names on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name. The Respondent has made no attempt to do so. The Panel therefore finds that the Respondent does not have rights or legitimate interests in the Domain Names.
Due to the intensive use of the trademark worldwide, the Respondent must have been aware of the Complainant and its trademarks when registering the disputed domain names. The Complainant has not authorized the Respondent to make use of a designation which is identical to its marks. This Panel does not see any conceivable legitimate use that could be made by the Respondent of the particular domain names without the Complainant’s authorization.
It is the consensus view of Panels (following the decision Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, <telstra.org>) that a lack of active use of the domain names without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include that no response to the complaint has been filed.
Alternatively the actual use probably being put on the internet after filing of the Complaint, justifies this decision. Here are, inter alia, generic lexapro products being advertised.
The circumstances of this case, in particular also the advertising links in the field of the Complainant accordingly also indicate that the Respondent registered and uses the disputed domain names primarily with the intention of attempting to attract, for commercial gain, Internet users to its potential website or other online locations, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of such website or location, or of a product or service on such website or location. The Panel therefore considers the disputed domain names to have been registered and used in bad faith in accordance with paragraph 4(a)(iii) of the Policy.
Accordingly, the Complainant has, to the satisfaction of the Panel, shown the Domain Names have been registered and are being used in bad faith (within the meaning of paragraph 4(a)(iii)of the Policy) by registering a confusingly similar domain name being aware of the trademarks of Complainant.
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