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Allergan Inc. v. Hiebert Net Inc., British Columbia International Arbitration Centre, Case No. 00058 - by Eric Macramalla

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Domain Name: combigan.ca
OutCome: Transfer Granted
Response Filed: No
Panellist: Rodney C. Kyle

Gowlings represented the Complainant in this case.

The Complainant was the owner of the COMBIGAN trade-mark.

The Registrant registered the domain name combigan.ca on January 21, 2004 and pointed it to a website which stated "under construction."

Under the CIRA Domain Name Dispute Resolution Policy ("CDRP"), a successful Complainant must establish that the disputed domain name is confusingly similar with a mark in which it had rights, that the name was registered in bad faith and that the Registrant does not have a legitimate interest in the domain name.

The Registrant did not file a Response to the Complaint, and accordingly the Complainant elected as per Rule 6(5) of the CIRA Domain Name Dispute Resolution Rules to reduce the three member Panel to a single member Panel.

On the issue of confusion, the Panel held that the Complainant had rights in the COMBIGAN trade-mark by virtue of being the owner of the corresponding Canadian trade-mark registration. The Panel also held that the Complainant had rights in the COMBIGAN trade-mark that preceded that January 21, 2004 registration of combigan.ca, given that the COMBIGAN application matured to registration in 2003.

Accordingly, the Panel concluded that the combigan.ca domain name was confusingly similar with the COMBIGAN trade-mark as per the Policy.

The Panel also held that the Registrant had no legitimate interest in the contested domain name as per paragraph 3.6 of the Policy. In particular, the Panel found that the domain name consisted of a Mark in which the Registrant had no rights and which the Registrant did not use in good faith. The Panel held that the supporting circumstances supported this finding, including the Registrant's attempt to sell the contested domain name for a fee far exceeding the registration fee and the Registrant's failure to use the contested domain name in the 2 ½ years since registration.

Finally, the Panel held that the domain name had been registered in bad faith, based on the same evidence proffered by the Complainant under the finding of no legitimate interest.

The Panel ordered the domain name combigan.ca transferred to the Complainant as per paragraph 4.3 of the Policy.

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