ADR Center for .eu attached to the Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic (Czech Arbitration Court)
Panel Decision
§ B12 of the .eu Dispute Resolution Rules (ADR Rules)
Case No.: 05580 Time of Filing: 2009-12-28 13:17:30 Administrative Contact: Tereza Bartošková Complainant Name: Eli Lilly and Company Limited Complainant's Authorized Representative Name: PAGE WHITE & FARRER Respondent Name: Ian Malley Respondent's Authorized Representative Name: Domain Name(s): 40OVER40 Other Legal Proceedings English summary of the decision: English summary of this Decision is hereby attached as Annex 1 Factual Background
The Respondent registered the DIsputed Domain Name on 2 September 2009 and is using it in relation to a web site concerning erectile dysfunction which links to an online pharmacy selling "generic CIALIS" which is not of the Complainant's manufacture.Parties’ Contentions
The Respondent is using the Disputed Domain Name which apart from the generic suffix .eu is identical to the Complainant's 40over40 name for a web site which relates to erectile dysfunction the same subject as the Complainant's 40over40 web site. The Respondent's web site links to an online pharmacy which sells "generic Cialis". CIALIS is a registered trade mark of the Complainant and it is being used to promote a generic drug not manufactured by the Complainant. A box of Cialis pills appears on the site and a distinctively shaped pill which imitates the get up of the Complainant's packaging and pills.
The Respondent does not have rights or legitimate interests in the 40over40 name, it is not commonly known by this name and it is not making non commercial or fair use of this name.
The Disputed Domain Name has been registered and is being used in bad faith. It is being used to attract Internet users to the Respondent's web site in circumstances where there is a likelihood of confusion as to the source, sponsorship, afiliation and endorsement of the web site and the goods featured on the site.
Since the filing of this Complaint the Respondent has contacted the Complainant suggesting that they lease the Disputed Domain Name name or purchase it from him.Discussion and Findings
The Respondent has not responded and not given any reason why it is entitled to use the Complainant's 40over40 mark for erectile dysfunction related goods and services. He does not appear to be commonly known by this name, have any permission from the Complainant to use the name or
be using it for a non commercial or fair use. The Respondent does not have any rights or legitimate interests in the Disputed Domain Name.
The Respondent has used the Disputed Domain Name for the same goods and services as the Complainant and has used them on a site with get up similar to the distinctive get up of the Complainant. He has also tried to sell or lease the Disputed Domain Name to the Complainant. As such the Disputed Domain Name has been intentionally used to attract Internet users for commercial gain to a web site in circumstances likely to cause confusion as to the source, sponsorship, affiliation or endorsement of the web site. As such there is no reason for the Panel to decide if the domain name was registered primarily for the purpose of selling to the Complainant The Respondent has registered and used the Disputed Domain Name in bad faith.Decision Panelists
- Dawn Osborne
Date: 2010-03-04 Annex 1
The Respondent does not have any rights or legitimate interests in the Disputed Domain Name.
The Respondent has used the Disputed Domain Name in circustances likely to cause confusion as to the origin of his web site and goods and has registered and used the Disputed Domain Name in bad faith.