WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Hoffmann-La Roche Inc. v. Barbara Harris

Case No. D2010-1365

1. The Parties

The Complainant is Hoffmann-La Roche Inc. of Nutley, New Jersey, United States of America, represented by Lathrop & Gage LLP, United States of America.

The Respondent is Barbara Harris of Foxboro, Massachusetts, United States of America.

2. The Domain Name and Registrar

The disputed domain name <xenical120.com> (the “Domain Name”) is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 12, 2010. On August 12, 2010, the Center transmitted by email to eNom a request for registrar verification in connection with the Domain Name. On August 13, 2010, eNom transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details.

The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceeding commenced on August 16, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 5, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on September 6, 2010.

The Center appointed Craig Edward Stein as the sole panelist in this matter on September 22, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

A. The Complainant and its Protected Mark

The Complainant is a corporation duly organized under the laws of the State of New Jersey, United States. Together with its affiliated companies, the Complainant is one of the leaders in research and development of pharmaceutical and diagnostic products in the world.

XENICAL is protected as a trademark for a pharmaceutical preparation for weight reduction and long-term management of weight in a multitude of countries. For example, XENICAL is registered to the Complainant in the United States Patent and Trademark Office (“USPTO”) under Reg. No. 1,906,281, having a registration date of July 18, 1995, and a first use date of March 18, 1994. The Complainant also owns the registration for XENICAL ORLISTAT 120 MG CAPSULES registered on January 19, 2010 under Reg. No. 3,739,382. Additionally, the Complainant’s parent company, F. Hoffmann-La Roche AG, owns the international registration for XENICAL. Copies of the respective trademark registrations were attached to the Complaint.

The mark XENICAL designates a pharmaceutical product that is utilized for weight reduction and the long-term management of weight. The Complainant’s mark XENICAL has been extensively promoted for many years. Sales of the Xenical pharmaceutical preparation are in the hundreds of millions of dollars in the United States alone. As a result of its extensive advertising, sales and dealings with its customers, the XENICAL mark has become well-known in the United States and throughout the world. Copies of unsolicited press reports, including newspaper articles discussing the status of XENICAL were attached to the Complaint.

Similarly, the Complainant’s parent corporation has registered the domain name <xenical.com> through which information regarding the Xenical product can be obtained. According to information contained on the “official” Xenical web site, the standard dose for this medication is 120 mg. A copy of the web pages to which the domain name <xenical.com> resolves was appended to the Complaint.

B. Alleged Communications Between the Complainant and the Purported Respondent

On June 25, 2010, after learning of the Respondent’s registration of the Domain Name¹, the Complainant, through its counsel, sent a letter by Certified Mail Return Receipt Requested and by email to the Respondent’s address indicated in the WhoIs database. In the June 25^th communication, the Complainant stated that the registration of the Domain Name infringed its trademark rights and requested that the Respondent transfer the Domain Name to the Complainant. A copy of this written communication was also attached to the Complaint.

Thereafter, the Complainant’s counsel received a telephone call from an individual who identified herself as the Respondent. According to the allegations contained in the Complaint, this individual stated that she had never registered the Domain Name. The Complainant’s counsel maintains to have advised the caller that if she were unable to transfer the Domain Name, a UDRP proceeding asking for the transfer of the Domain Name to the Complainant would ensue. The Complainant’s counsel also alleges to have informed the caller that no response from her as to any papers she would receive was required in order for the Domain Name to be transferred to the Complainant. According to the Complainant’s counsel, the caller stated that she would allow the Domain Name to be transferred to the Complainant via the UDRP proceeding. Finally, the Complainant’s counsel contends to have “followed-up” with the caller prior to filing this action to reiterate the previous telephone call in order to “make sure [the caller] understood.”

C. The Web Site to which the Domain Name Resolved

When the undersigned Panel attempted to visit the web site to which the Domain Name resolved, that site was already blocked from viewing. In addition, a check of the web site’s history via the Internet Archive proved fruitless as there were no pages in that database linked to the Domain Name. Fortunately, the Complainant attached a print-out of the web site to which the Domain Name resolved on July 21, 2010. The seven-page document displayed pages that described the Xenical pharmaceutical product and offered the preparation for sale. Furthermore, many of the pages that appeared at this web site were similar or identical to the pages that can be found at the “official” web site set up by the Complainant’s parent corporation at “www.xenical.com”.

So too, the Complainant attached the web site to which an Internet user was taken when an Order button on the web site at the Domain Name was activated. That web site was “www.mailpharmacy.org”. That web site was still active when accessed by the Panel and was similar, if not identical, to the Complainant’s Exhibit. In sum, the web site offered to sell both the Xenical product, in a generic form, as well as other drugs, including some competitors to the Xenical product.

With regard to the sale of a generic form of Xenical, the Complainant maintains that there is no United States Federal Drug Agency (“FDA”)-approved generic form of prescription XENICAL and therefore any sales of such a product are illegal, at least in the United States.

Although not mentioned in the Complainant’s filings, a check of the WhoIs database revealed that the Respondent in this proceeding is also listed as the registrant of the domain name <mailpharmacy.org>.²

5. Parties’ Contentions

A. Complainant

I. The Complainant contends that the Domain Name is confusingly similar to a trademark in which the Complainant has rights.

(a) The Complainant’s use and registration of the XENICAL trademark predates the Respondent’s registration of the Domain Name.

According to the Complainant, the XENICAL trademark was (i) filed and registered; and (ii) the drug that bears its name was marketed and sold internationally before the Domain Name had been registered. The Complainant claims that its rights to the XENICAL mark are not only superior to those that could be claimed by the Respondent, but that the Respondent has no such claim whatsoever.

(b) The XENICAL mark is distinctive.

The Complainant argues that the term “xenical” is a unique, arbitrary, invented mark with a high degree of individuality and no colloquial use. So too, the Complainant maintains that its XENICAL mark has no logical or suggestive relation to the pharmaceutical to which it is associated. That connection has occurred only because of the advertising and marketing efforts of the Complainant. Accordingly, the Complainant contends that these characteristics make the XENICAL mark one that is particularly strong. See 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 11:78 (4th ed. 2005).

The Complainant contends that the Domain Name is confusingly similar because it incorporates the XENICAL trademark in its entirety. The Complainant argues that the addition of generic or descriptive words, or even other marks, does not change the fact that as to the XENICAL mark, the Domain Name is similarly confusing. See America Online, Inc. v. Anson Chan, WIPO Case No. D2001-0004, citing Sporty’s Farm L.L.C. v. Sportsman’s Market. Inc., 202 F.3d 489, 497-98 (2d. Cir. 2000).

II. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name.

(a) The Respondent is using the Domain Name for commercial gain.

The Complainant maintains that the Respondent is using the XENICAL mark in the Domain Name to draw consumers to its web site and then direct them to another web site that advertises and sells what is purported to be “generic Xenical”. The Complainant contends that the Respondent receives a commission each time a paying consumer arrives at the “www.medpharmacy.org” Internet pharmacy web site.

(b) The Complainant did not give the Respondent any authority to use the XENICAL trademark.

The Complainant has not given the Respondent permission, authorization, consent, or license to use its XENICAL mark.

The Respondent is not using the Domain Name in connection with a bona fide offering of goods or services. Rather, the Respondent is using the Domain Name to divert Internet users seeking the Complainant’s web site associated with the domain name <xenical.com>, or the XENICAL weight loss product to an unrelated commercial web site without license or authorization of any kind.

Similarly, the Respondent has not been commonly known by the Domain Name. Neither has the Respondent made a legitimate, noncommercial or fair use of the Domain Name without: (i) intent for commercial gain; or (ii) intent to misleadingly divert consumers; or (iii) intent to tarnish the trademark or service mark at issue. To the contrary, the Respondent’s use intentionally trades on the fame of the Complainant’s trademark, and thus, it cannot constitute a bona fide offering of goods and services. See Hoffmann-La Roche Inc. v. Alisia Uzun, WIPO Case No. D2008-1138 (citing Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com”, WIPO Case No. D2000-0847). See also America Online, Inc. v. Xianfeng Fu, WIPO Case No. D2000-1374 (“it would be unconscionable to find ... a bona fide offering of services in a respondent’s operation of (its) web-site using a domain name which is confusingly similar to the complainant’s mark and for the same business”), cited in Hoffmann-La Roche Inc. v. Aneko Bohner, WIPO Case No. D2006-0629; Hoffmann-La Roche Inc. v. Samuel Teodorek, WIPO Case No. D2007-1814.

Likewise, the sale of a drug that is not authorized by the law of the jurisdiction in which the Domain Name is registered vitiates any possible fair use of the Domain Name. See, e.g., G.D. Searle & Co. v. James Mahony, NAF Claim No. FA0204000112559 (finding the respondent’s use of the disputed domain name to solicit pharmaceutical orders without a license or authorization from the complainant does not constitute a bona fide offering of goods or services under the Policy, paragraph 4(c)(iii)).

III. The Complainant maintains that the Domain Name was registered and is being used in bad faith.

(a) The Complainant’s trademark registration predates the Domain Name registration.

The Complainant contends that its trademark registration relates back to either its first use in 1994 or registration in 1995. In either instance, the trademark registration predates the Domain Name registration by at least fifteen (15) years. Thus, the Complainant argues that the Panel should infer that the Respondent knew of its trademark at the time the Domain Name was registered. See Lilly ICOS LLC v. Cybernet Marketing/Antoine Tardif, WIPO Case No. D2006-1123.

(b) The XENICAL mark is well-known throughout the world.

Similarly, the Complainant submits it has extensively marketed and advertised its pharmaceutical product using the XENICAL trademark. Because the XENICAL trademark is well-known around the world, the Complainant contends that it is reasonable to infer that the Respondent must have known of the XENICAL mark at the time that the Respondent registered the Domain Name. See Sanofi-Aventis v. Impact Healthcare, WIPO Case No. D2006-1102.

The Complainant also claims that evidence contained in its Exhibits shows that the Respondent is using the XENICAL mark to attract Internet users, who would otherwise be searching for the Complainant’s official XENICAL web site, and redirects them to an Internet pharmacy to obtain commission payments for any products that the misdirected Internet user purchases.

(d) The Respondent misrepresents XENICAL in a manner that tarnishes the Complainant’s trademark.

The Complainant further submits that the web page portal to which the Domain Name directly resolves leads Internet users to a web site that represents itself to be an Internet pharmacy, which, among other activities, sells an alleged “generic” version of Xenical. The Complainant contends that these Xenical sales, at least within the United States, are illegal. Thus, the Respondent’s misrepresentations mislead the public into believing that the Complainant endorses and supports these illegal activities. See generally, Britannia Building Society v. Britannia Fraud Prevention, WIPO Case No. D2001-0505.

(e) Other Factors

The Complainant also maintains the following points support its argument of bad faith use:

(i) “Xenical” is not a generic word;

(ii) XENICAL is an invented and coined mark that has a strong worldwide reputation;

(iii) There exists no relationship between the Respondent and the Complainant. The Complainant has not given the Respondent or the person who has fraudulently used the identity of the Respondent permission to use its XENICAL mark in any manner;

(iv) The only reasonable conclusion is that the Respondent was aware of the XENICAL trademark and used it in a domain name, leading the public to believe that the Respondent has a relationship with the Complainant, or that the Respondent was seeking commercial gain through fraudulent use of the identity of the Respondent of record, when in fact the actual registrant of the Domain Name has no license or permission from the Complainant whatsoever. The Respondent, aware of the well-known XENICAL trademark, has connected the Domain Name with a web site which offers for sale products under the Complainant’s trademark, as well as other pharmaceutical products of third party competitors, all to the confusion of the public and the detriment of the Complainant;

(v) By using the Domain Name through which to advertise for sale the Xenical product, without permission or license of any kind and to sell, through a linked site, competitive illegal (for sale in(to) the United States) products, the Respondent has intentionally attempted to attract for financial gain Internet users to the Respondent’s web site at the Domain Name by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s web site or the goods sold on or through the Respondent’s web site;

(vi) The Respondent’s web site at the Domain Name has no connection with, and specifically no legitimate business connection with the Complainant or its Xenical pharmaceutical preparation. Such unauthorized use of the Complainant’s well-known mark by the Respondent suggests opportunistic bad faith. See Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D200-0163; and

(vii) Use of the Domain Name containing the XENICAL mark to offer an illegal generic prescription form of XENICAL, as well as competitors’ weight loss products, and other pharmaceutical products of third party competitors demonstrates bad faith use. See Hoffmann-La Roche Inc. v. Samuel Teodorek, supra (citing Pfizer Inc. v. jg a/k/a Josh Green, WIPO Case No. D2004-0784 (citing Google, Inc. v. wwwgoogle.com and Jimmy Siavesh Behain, WIPO Case No. D2000-1240));

Casio Keisanki Kabushiki Kaisha (Casio Computer Co., Ltd.) v. Jongchan Kim, WIPO Case No. D2003-0400.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Standards and Burden of Proof

Under paragraph 4(a) of the Policy, a complainant must prove each of the following elements:

i) the domain name at issue is identical or confusingly similar to the complainant’s trademark or service mark; and

ii) the respondent has no rights or legitimate interests in respect of the domain name; and

iii) the domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the Policy sets out four illustrative, non-exclusive circumstances, which, if demonstrated by a complainant, for the purposes of paragraph 4(a)(iii) shall be deemed evidence of a respondent’s bad faith registration and use of a domain name.

Paragraph 4(c) of the Policy sets out three descriptive, non-exclusive situations, any one of which, if proved by a respondent, shall be considered as evidence of the respondent’s rights to or legitimate interests in a domain name for the purpose of paragraph 4(a)(ii), the provision which concerns the respondent’s possible “rights or legitimate interests” to the domain name. This section of the Policy is considered the “safe-harbor” provisions to paragraph 4(a)(ii).

B. Introduction

This case presents yet again another challenge to a domain name that has incorporated the Complainant’s trademark XENICAL. In fact, by the Panel’s count, over the past eight years, the Complainant, or its parent corporation, has brought approximately one hundred and forty (140) UDRP proceedings wherein one or more of the domain names included the mark XENICAL.

C. Preliminary Issue: Alleged Consent to Transfer

In the body of the Complaint filed in this matter, the Complainant alleges that certain communications took place between its legal representative and an individual who claimed to be the Respondent. According to these allegations, the purported Respondent allegedly acquiesces in relief to which the Complainant seeks. None of these allegations, however, is supported by any affidavit or other sworn documents or even copies of correspondence or emails.

In similar circumstances, most complainants have submitted affidavits or written statements from the named respondent or the respondent’s representative. See, e.g., TPI Holdings, Inc. v. Elaine Noe, WIPO Case No. D2009-0568; TPI Holdings, Inc. v. Carmen Armengol, WIPO Case No. D2009-0361; Accor S.A. v. Kristen Hoerl, WIPO Case No. D2007-1722; Maison Bouchard Père et Fils v. Bouchardpereetfils.Com/ Domain Administration, WIPO Case No. D2007-1769. Here, such a submission would have been advisable, especially in light of the fact that the named Respondent is also the individual identified in the WhoIs database as the registrant of the domain name <mailpharmacy.org>, the domain name associated with the web site to which Internet users are directed if they click on the hyperlinks contained within the web pages to which the Domain Name resolves.

However, in light of the Respondent’s default, the Panel may accept as true all of the reasonable factual allegations contained in the Complaint. See Top Driver, Inc. v. Benefits Benefits, WIPO Case No. D2002-0972, and Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009. Such allegations would include those that detail conversations between the Complainant’s attorney and the alleged Respondent here. Thus, the Panel assumes, as fact, that the Respondent has agreed to the relief requested by the Complainant.

The Respondent’s agreement to the transfer of the Domain Name is important because in the face of similar situations, previous UDRP panels have first considered to what extent they must address the full arguments put forth by respective complainants before ordering the relief requested. A thorough review of the various approaches taken by past panels is undertaken by the esteemed panel in Research In Motion Limited v. Privacy Locked LLC/Nat Collicot, WIPO Case No. D2009-0320. Without reiterating the different practices adopted by other UDRP panels, suffice it to say that, in the particular circumstances presented by this case, a proper approach still requires an analysis of whether the three elements of the Policy that the Complainant must establish have been met. See National Football League Players Association, Inc. v. Cayman Trademark Trust d/b/a Trademark, WIPO Case No. D2005-0234.

Nevertheless, as a result of the Respondent’s agreement to the remedy sought, and the fact that there have been approximately 140 previous challenges to other domain names that contained its trademark XENICAL, rather than repeat what has already been articulated several times before, this Panel will provide citations to the applicable UDRP decisions and the principles that they support.³

D. Identical or Confusingly Similar

The Domain Name contains the Complainant’s trademark XENICAL in its entirety. The addition of the number “120” in no manner obviates the result that with the inclusion of the Complainant’s trademark, the Domain Name is, at a minimum, confusingly similar. Indeed, here, where the standard prophylactic dose for Xenical is 120 mg, the addition of the Arabic numeral “120” seems designed to capitalize on the Complainant’s trademark. See F. Hoffmann-La Roche AG v. Protected Domain Services/MediaTec Co.Ltd., Sandro Zeller, WIPO Case No. D2009-0635 (the domain name <tamiflu75.com> contained both trademarked pharmaceutical name and standard prophylactic dosage); see also SANOFI-AVENTIS v. Britny Spears, WIPO Case No. D2006-0795 (the domain name <ambien-10-mg.info>).

Accordingly, the Complainant has established the first part of the Policy’s three-part test.

E. Rights or Legitimate Interests

With regard to paragraph 4(c)(i) of the Policy, the Respondent’s failure to file a reply in this proceeding suggests that there is no evidence that the Respondent was using or making any “demonstrable preparations to use” the Domain Name. See Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465. (“[B]y defaulting and failing to respond, [r]espondent has failed to offer the panel any of the types of evidence set forth in [p]aragraph 4(c) of the Policy from which the panel might conclude that [r]espondent has any rights or legitimate interest in the domain name.”).

In any event, the Respondent would not be able to come within the protection of the safe harbor provisions for a number of reasons. First, the Respondent’s web site at the Domain Name does not actually offer any “bona fide genuine goods or services”. Rather, at the time the Complaint was filed, the Respondent’s web site was merely a conduit or portal for the web site of a third party from whom the Respondent is paid a commission, or another web site owned by the same Respondent from which she derives income by selling illicit “generic” Xenical. The Panel finds that in the circumstances of this case, this is not a bona fide offering of goods or services. See Mr. Olympia, LLC, American Media Operations, Inc., International Federation of BodyBuilders v. Tim Harrington, WIPO Case No. D2005-1287; Société des Hôtels Méridien v. Modern Limited - Cayman Web Development, WIPO Case No. D2004-0321.

Concerning paragraph 4(c)(ii), there is no evidence that the Respondent is or was “commonly known” by the Domain Name.

Paragraph 4(c)(iii) only applies if the Respondent is “making a legitimate noncommercial …use of the [D]omain [N]ame, without intent for commercial gain or misleadingly divert consumers” and that the Domain Name does not “tarnish the trademark or service mark at issue”. Here, the opposite has been established and, thus, this exception is inapplicable.

In sum, the Panel determines that the Complainant has established that the Respondent has no rights or legitimate interests in respect of the Domain Name as provided in paragraph 4(a)(ii) of the Policy, and therefore that the second element necessary to obtain relief pursuant to the UDRP has been established.

F. Registered and Used in Bad Faith

The Complainant has established that the trademark registration predates the Domain Name registration by over a decade, that the XENICAL trademark is known throughout the world and that it is associated with the Complainant’s pharmaceutical preparation. Thus, in this Panel’s view, there is no question but that the registration of the Domain Name was in bad faith.

With regard to the use of the Domain Name in bad faith, the Panel also agrees with those contentions set forth by the Complainant in Sections 5 A. III ((c) through (e)), supra.

In addition, the following points support the conclusion that the Domain Name has been used in bad faith:

(i) Although the individual identified as the Respondent claims to have no knowledge of the web pages to which the Domain Name resolved, whoever controlled the Domain Name fully understood the use to which the Domain Name was being put. Thus, the Respondent can be held to have set up a site to further her commercial interests in selling a purported “generic” version of the Xenical drug. Such activity manifests bad faith use. See Hoffmann-La Roche Inc. v. WhoisGuard, WIPO Case No. D2005-1288 (“[Redirection of] Internet users to a commercial web site selling the very same product identified by the mark [manifests bad faith]. To [hold] otherwise would allow respondent[] to trade off the goodwill of trademark owners with impunity.”). Accord, F. Hoffmann-La Roche AG v. Stoyan Stoyanov, WIPO Case No. D2006-0197.

(ii) So too, none of the pages on these web sites contains a statement that effectively disclaims an affiliation with the Complainant or that the Complainant has not authorized the Respondent to speak on its behalf or sell its products. Because there is no plain disclaimer the web site raises the erroneous impression that the Complainant endorses the activities of the respective Internet pharmacy. See generally, Lilly ICOS LLC v. Self, WIPO Case No. D2005-1099.

(iii) More importantly, the Respondent’s use of the Complainant’s XENICAL mark in the Domain Name is potentially harmful to the health of many unsuspecting consumers. According to the Complainant, these individuals will labor under the mistaken impression that they are dealing with the Complainant, i.e., a company that has a reputation of manufacturing and marketing safe, efficacious drugs that are approved and monitored by the FDA. Instead, they may be buying pharmaceutical products that are unlawfully sold and physically harmful. In short, the XENICAL mark is abused because the Domain Name in which it is embedded resolves to a portal through which the Internet user can illegally obtain pharmaceuticals, the safety of which cannot be assured, and ultimately, this puts the public’s health and safety at risk. As explained by the Panel in Hoffmann-La Roche Inc. v. #1 Viagra Propecia Xenical & More Online Pharmacy, WIPO Case No. D2003-0793, “[w]here a [c]omplainant alleges facts tending to prove that the [r]espondent offers products in a fashion that puts the public health at risk, it is especially appropriate to draw adverse inferences against a respondent who fails to respond. Hoffmann-La Roche Inc. v. Eric Kaiser a/k/a eDrugNet, WIPO Case No. D2003-0721 (Unrebutted allegation that [r]espondent offered Complainant’s ACCUTANE without a prescription, even though strongly contraindicated for pregnant women)”.

See also, Lilly ICOS LLC v. Tudor Burden, Burden Marketing, WIPO Case No. D2004-0794 (stating “[c]omplainant’s [pharmaceutical] product is available only with a physician’s prescription, and is manufactured, labelled, and sold in strict compliance with US Food and Drug Administration (FDA) and other health authority laws and regulations. The products sold on [r]espondent’s web site are…illegal and potentially dangerous.”).

Accordingly, the Complainant has established the third prong of the Policy’s tri-partite test.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <xenical120.com> be transferred to the Complainant.

Craig Edward Stein
Sole Panelist
Dated: October 21, 2010

¹ The Domain Name was first registered on May 31, 2010.

² A reverse WhoIs search showed that approximately 107 other domain names were associated with the same Respondent, approximately 16 of which included the same email address listed in the WhoIs information associated with the Domain Name <xenical120.com>.

³ This methodology is analogous to the practice of adhering to the consensus views that have developed among UDRP Panel members. See generally, WIPO Overview of WIPO Panel Views on Selected UDRP Questions (the “WIPO Decision Overview”) at Paragraph 4.1 (The consensus view is that “[t]he UDRP does not operate on a strict doctrine of precedent. However, panels consider it desirable that their decisions are consistent with prior panel decisions dealing with similar fact situations. This ensures that the UDRP system operates in a fair, effective and predictable manner for all parties.”). Accord, Fresh Intellectual Properties, Inc. v. 800Network.com, Inc., WIPO Case No. D2005-0061.