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Neal is head of the firm’s Patent Practice and also serves on the Management Committee. He primarily focuses on patent litigation and appeals. He has handled cases covering a diverse spectrum of mechanical, chemical, and electrical technologies, with an emphasis on cases in the pharmaceutical industry.
Lead counsel for ANDA filer in litigation relating to Latuda (lurasidone), a treatment for schizophrenia. Sumitomo Dainippon Pharma Co., Ltd. et al. v. Aurobindo Pharma Ltd. et al., No. 2:18-cv-02620 (D.N.J. 2018).
Lead counsel for DJ plaintiff in litigation regarding sedative Precedex (dexmedetomidine hydrochloride). Baxter Healthcare Corporation v. Hospira, Inc. et al., No. 1:18-303 (D. Del. 2018).
Lead counsel for ANDA filer in litigation concerning antidepressant Trintellix (vortioxetine). Takeda Pharm. Co. Ltd. et al. v. Hetero USA Inc. et al., No. 1:18-cv-00176 (D. Del. 2018).
Lead counsel for plaintiff in litigation relating to Eligard (leuprolide acetate) indicated for prostate cancer. Horatio Washington Depot Technologies LLC v. Tolmar, Inc. et al., No. 1:17-cv-01086 (D. Del. 2017).
Lead counsel for ANDA filer in litigation relating to Xarelto (rivaroxaban), indicated to prevent and treat blood clots. Bayer Intellectual Property GmbH et al. v. Alembic Pharms. Ltd. et al., No. 1:17-cv-00675 (D. Del. 2017).
Lead counsel for ANDA filer in litigation relating to Eliquis (apixaban), indicated to prevent and treat blood clots. Bristol-Myers Squibb et al. v. Hetero USA Inc. et al., No. 1:17-cv-00376 (D. Del. 2017).
Lead counsel for petitioner in Case IPR 2016-01636 concerning Toviaz (fesoterodine).
Lead counsel for ANDA filer in litigation relating to Nexium OTC (esomeprazole), used for frequent heartburn. AstraZeneca et al., v. Hetero USA Inc. et al., No. 3:16-cv-02442 (D.N.J. 2016).
Lead counsel for petitioner in Case IPR 2016-00098 and IPR 2016-00111 relating to Treanda (bendamustine hydrochloride).
Lead counsel for ANDA filer in Hatch-Waxman litigation relating to Treanda (ready-to-dilute bendamustine hydrochloride), a cancer treatment. Cephalon v. Fresenius Kabi USA, LLC, 1:15-cv-00536 (D. Del. 2015).
Lead counsel for ANDA filer in litigation relating to Daliresp (roflumilast), indicated for chronic obstructive pulmonary disease. Takeda GMBH, et al. v. Hetero USA Inc., et al., No. 3:15-cv-03385 (D.N.J. 2015).
Lead counsel for ANDA filer in litigation relating to Abilify (aripiprazole). Otsuka Pharm. Co. Ltd. v. Torrent Pharms. et al., 1:14-cv-01078 and related cases (D.N.J. 2014).
Lead counsel for ANDA filer in Hatch-Waxman litigation relating to Treanda (lyophilized bendamustine hydrochloride), a cancer treatment. Cephalon v. Hetero Labs Ltd., 1:13-cv-02046 (D. Del. 2013).
Lead counsel for ANDA filer in litigation relating to Toviaz (fesoterodine), indicated for overactive bladder syndrome. Pfizer, Inc. and UCB Pharma GmbH v. Alkem Laboratories, Ltd., 1:13-cv-01110 (D. Del. 2013).
Lead counsel for the patent owner in ANDA litigation relating to Solaraze, indicated for actinic keratosis. Fougera Pharms., Inc. and Jagotec AG v. Tolmar, Inc., 1:10-cv-02635 (D. N.J. 2012).
Represented the patent owner in ANDA litigation upholding the validity of the patent covering Zyprexa (olanzapine), an atypical antipsychotic. Eli Lilly & Co. v. Zenith Goldline Pharms., Inc., 364 F. Supp. 2d 820 (S.D. Ind. 2005), affirmed by the Federal Circuit in 471 F.3d 1369 (Fed. Cir. 2006).
Represented appellants in the U.S. Court of Appeals for the Federal Circuit in successfully reversing the district court’s summary judgment of no infringement. 01 Communique Laboratory, Inc. v. LogMeIn, Inc., 687 F. 3d 1292 (Fed. Cir. 2012).
Lead counsel for the defendant accused of infringing patents relating to visual voicemail. Case settled favorably. Brandywine Communications Technologies, LLC v. LG Electronics, Inc., 6:12-cv-00271 (M.D. Fla. 2012).
Represented two respondents through trial in defending against allegations of patent infringement relating to three patents covering computer forensic devices. Prevailed on an Initial Determination finding no domestic industry. In the Matter of Certain Computer Forensic Devices and Products, No. 337-TA-799 (2012).
Represented complainant as lead counsel in a U.S. International Trade Commission patent infringement action relating to hand-held underground cable and pipe locators. The parties reached a global settlement during the investigation. In the Matter of Certain Underground Cable and Pipe Locators, No. 337-TA-727 (2010).
Lead counsel for defendants in a patent infringement litigation concerning robotic gripping fingers. GMG Gesellschaft Fur Modulare Greifersysteme mbH et al. v. Robotiq, Inc. et al., No. 2:16-cv-573 (E.D.Va. 2017).
Represented complainant in a patent infringement action relating to baby strollers and playards. Case settled favorably while summary determination motions were pending. In the Matter of Certain Strollers and Playards, Inv. No. 337-TA-762 (2011).
Argued and won a reversal of the Trademark Trial and Appeal Board’s (TTAB) canceling the mark at issue. Precedent-setting case confirmed that a mark’s prosecution file history is automatically of record in an inter partes board proceeding and clarified the burdens of proof in a validity-based trademark cancellation proceeding. The Cold War Museum Inc. v. Cold War Air Museum Inc., 586 F.3d 1352 (Fed. Cir. 2009).
Represented appellees in the U.S. Court of Appeals for the Federal Circuit’s affirming of the district court ruling on non-infringement and invalidity of patents covering aspects of wrinkle-free shirt seams. TALtech Ltd. v. Esquel Apparel, Inc., 279 Fed. Appx. 974 (Fed. Cir. 2008).
Represented respondents accused of infringing design patents covering aspects of the Ford F-150. In the Matter of Certain Automotive Parts, Inv. No. 337-TA-557 (2008).

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Mark A. Peper, of Charleston, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Scarlett Wilson, of Charleston, for Respondent.
HUFF, J.: Onrae Williams was convicted of distribution of crack cocaine and distribution of crack cocaine within proximity of a school. Based upon two prior “serious” convictions, the trial court sentenced Williams to life imprisonment without the possibility of parole on both charges. On appeal, Williams asserts error in (1) the trial court’s refusal to allow him to impeach the testimony of the confidential informant with evidence of several former convictions that were older than ten years and (2) the trial court’s sentencing of him to life without parole (LWOP) in violation of his constitutional protection from cruel and unusual punishment. We affirm.
This case involves a controlled buy set up by the City of Charleston Police Department using a confidential informant (CI). On August 10, 2004, officers met with the CI, searched him to insure he had no contraband on his person, provided him with money, and equipped him with a button camera capable of capturing video. Because there had been numerous complaints about drug activity near Harmon Park, the CI was taken close to that area with a bicycle, which the CI then used to ride into the area. Following along with the videotape of the incident admitted into evidence, Officer Womack indicated where the CI came in contact with someone, and ultimately completed a drug transaction approximately one hundred yards away from Burke High School. Officer Womack testified he maintained a constant visual on the CI during the entire process, as well as a constant audio transmission. When the informant was searched before being let out to make the buy, he had no drugs on him. When he returned, the CI had crack cocaine in his hand.
The CI also testified to the events of that day. As with Officers Womack and Hurteau, he followed along with the videotape of the event, identifying Onrae Williams on the tape and noting the completion of the transaction where Williams handed him drugs in exchange for money. He testified that after Williams handed him the drugs, he got back on the bicycle and rode back to the police officers and gave them the drugs. The CI confirmed that the officers searched him before the transaction, as well as upon his return. Subsequent analysis of the item showed it to be .3 grams of crack cocaine.
At the start of the case, Williams made an in limine motion seeking to admit evidence of several prior convictions of the CI that were greater than ten years old. Specifically, Williams sought to introduce evidence of the CI’s 1988 conviction for armed robbery, for which he was released from prison on August 1, 1996, as well as several forgeries and a larceny that occurred around 1981 and 1982. Williams argued the CI’s credibility was key to the trial as the video was not completely clear, and that under Rule 609(b), SCRE, the jury should have this information in the interest of justice. Williams also noted the CI had a 2002 conviction for receiving stolen goods, showing the CI has continued to break the law. Finally, Williams maintained that the matter had been pending for about a year, and had the State tried the case within the first six months, the armed robbery conviction would have fallen within the ten year limit under the rule. He argued it was the State’s delay in bringing the case that caused the ten-year period to expire between the time of his arrest and the trial, as his arrest occurred in January 2005, a time within the ten-year period. Williams acknowledged, however, that he had not made a motion for a speedy trial.
The trial court noted Williams would be able to challenge the CI’s credibility with the prior conviction for receiving stolen goods. It found no reason under the facts of this case to extend the time limit for the other convictions beyond the cut-off date under the rule, but stated it would rule on the matter after Williams proffered the evidence.
[Counsel]: But it had nothing to do with the money?
[CI]: No, it ain’t about the money. I had money, you know. It was about the drug deals. I figure it’s about time to make a change now. I’ve done spent half of my life in the penitentiary.
[Counsel]: You’ve spent half your life in prison?
[Counsel]: And now you’ve turned your life around?
[Counsel]: It was time to make a change?
[CI]: It was time to make a change, for sure.
[Counsel]: You’re an honest man now?
[CI]: I ain’t going to say honest because I trip up sometimes.
Thereafter, defense counsel asserted the CI opened the door to testimony concerning his older prior convictions when he stated he had spent half of his life in the penitentiary. The court noted Williams had already received a benefit by that answer to the question, and still found no exceptional circumstances in light of the CI’s testimony that would warrant allowing convictions outside the time limit, but allowed counsel to proffer the evidence. Outside the jury’s hearing, the CI admitted he had a 1988 conviction for armed robbery for which he served time and was released in August 1996. He further acknowledged a 1982 larceny conviction resulting in a two-year sentence, suspended to six months, as well as some forgeries and a housebreaking conviction in 1982 for which he received a ten-year sentence. The solicitor objected to introduction of the prior convictions, arguing it was not probative, it was unduly prejudicial, and defense counsel had already accomplished his goals through the testimony he elicited from the CI. The trial court ruled the circumstances did not warrant allowing the older prior convictions, and the issue was resolved by the CI’s answers on cross-examination.
The jury found Williams guilty of the distribution and proximity charges. The solicitor stated Williams had several previous convictions, including a 2000 possession with intent to distribute cocaine and a proximity charge, as well as a possession of crack charge, and in 2003 had distribution of marijuana, distribution of cocaine, proximity, and possession of cocaine charges. The court noted Williams had at least two previous serious offenses such that this offense would qualify as a third. Defense counsel agreed and further stated he did not believe the court had “much discretion” as far as sentencing, but placed an objection on the record to a life without parole sentence. Counsel maintained such a sentence would constitute cruel and unusual punishment as this was a drug crime and not a violent crime. He argued, in this case, life without parole would be excessive, unduly severe, and would violate the due process clause. The court sentenced Williams to life without parole on both offenses. This appeal followed.
Williams first contends the trial court erred by refusing to allow evidence of the CI’s former convictions for armed robbery, larceny, forgery and housebreaking. He argues the trial court erred in failing to admit this evidence because (1) the CI opened the door to the evidence by stating he spent half his life in prison and (2) the court failed to apply the proper balancing test in ruling Williams could not challenge the CI’s credibility pursuant to Rule 609, SCRE. We find no reversible error.
The admission or exclusion of evidence falls within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. State v. Morris, 376 S.C. 189, 205, 656 S.E.2d 359, 368 (2008). As well, the scope of cross-examination is within the discretion of the trial court, and the court’s decision will not be reversed on appeal absent a showing of prejudice. State v. Colf, 337 S.C. 622, 625, 525 S.E.2d 246, 247-48 (2000). Further, any error in the trial court’s failure to conduct the proper balancing test in determining whether remote convictions are admissible may be harmless. State v. Johnson, 363 S.C. 53, 60, 609 S.E.2d 520, 524 (2005). To constitute error, the trial court’s ruling to admit or exclude evidence must affect a substantial right. Id.; Rule 103(a), SCRE. Error is considered harmless where it could not reasonably have affected the outcome of the trial. State v. Bryant, 369 S.C. 511, 518, 633 S.E.2d 152, 156 (2006). “Generally, appellate courts will not set aside convictions due to insubstantial errors not affecting the result. Thus, an insubstantial error not affecting the result of the trial is harmless where a defendant’s guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached.” Id. (citations omitted). In determining whether error is harmless, the circumstances of each individual case are to be considered. Id.; Johnson, 363 S.C. at 60, 609 S.E.2d at 524.
Even assuming arguendo that the trial court failed to apply the proper balancing test or that the court erred in refusing to admit the evidence based on the CI’s opening door, we find any such error would be harmless. Here, contrary to Williams’ assertion, the CI was not the only witness for the State who could identify him and place him at the scene. Officer Hurteau testified, while following the videotape, that you could hear an individual at the scene yelling out the name “Onrae,” and at a later point on the tape noted Williams is referred to as “On.” He further indicated you could observe Williams on the videotape and also could see Williams holding a small substance in his hand, which he places in the CI’s hand. Officer Jenkins, who was on perimeter duty during the controlled buy, testified he observed Williams with another man near the fence as the CI approached the area. Officer Womack testified he maintained a constant visual on the CI during the entire process, and that the CI was searched before being let out to make the buy and had no drugs on him, but had crack cocaine in his hand when he returned. Finally, after reviewing the video of the incident, Officer Hurteau testified he and Officer Womack, as well as Officer Jenkins, all immediately and without hesitation recognized Onrae Williams as the individual who sold the drugs to the CI.
Further, the CI was already impeached with admission of his conviction of receiving stolen goods, a crime the CI acknowledged before the jury was a crime of dishonesty. The CI’s credibility was clearly called into question by this, along with his admission he had spent half of his life in the penitentiary and his refusal to characterize himself as honest. See State v. Cooper, 312 S.C. 90, 92, 439 S.E.2d 276, 277 (1994) (holding any error in excluding evidence of witness’ prior bad acts harmless, where witness was thoroughly impeached by admission of numerous previous convictions and acknowledgment his testimony was given for favorable treatment on pending charges), overruled in part on other grounds by Franklin v. Catoe, 346 S.C. 563, 575, 552 S.E.2d 718, 725 (2001); State v. Tillman, 304 S.C. 512, 520, 405 S.E.2d 607, 612 (Ct. App. 1991) (finding, where witness was thoroughly impeached by admission of numerous prior convictions and his acknowledgment that he was testifying under an agreement to receive favorable treatment on some outstanding charges, any error in excluding evidence of a particular crime he might have committed was harmless).
Aside from the CI’s testimony, there is evidence of record placing Williams at the scene and identifying him as the individual engaged in the drug transaction with the CI. There is also evidence showing the CI, while under constant visual, returned with drugs that he did not have when he left the officers. Given all this evidence, along with the fact that the CI was thoroughly impeached by evidence of his crime of dishonesty and his admissions he had spent half of his life in jail and that he would not characterize himself as honest, we find exclusion of the CI’s remote convictions could not reasonably have affected the result of the trial. Considering the circumstances of this case, we therefore conclude any possible error in the exclusion of the evidence is harmless.
Williams next contends the trial court erred in sentencing him to life in prison without parole in violation of his constitutional protection from cruel and unusual punishment. He asserts, under State v. Pittman, 373 S.C. 527, 647 S.E.2d 144 (2007), cert. denied, 128 S. Ct. 1872 (2008), the two principles to consider in determining whether a punishment is cruel and unusual are (1) the evolving standards of decency that mark the progress of a maturing society and (2) the proportionality between the punishment and the offense. He argues an LWOP sentence for distribution of less than half a gram of a controlled substance is inconsistent with evolving standards of contemporary values. Williams further asserts an LWOP sentence under the recidivist statute is grossly disproportionate to the punishment deserved for distribution of less than half a gram of cocaine, especially where the first conviction used to qualify him for LWOP was committed as a juvenile. We disagree.
Section 17-25-45(B) of the South Carolina Code requires that “upon a conviction for a serious offense . . . a person must be sentenced to a term of imprisonment for life without the possibility of parole if that person has two or more prior convictions for: (1) a serious offense.” S.C. Code Ann. § 17-25-45(B) (2003).
The Eighth Amendment to the United States Constitution provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. XIII. The cruel and unusual punishment clause requires that the duration of a sentence not be grossly disproportionate with the severity of the crime. State v. McKnight, 352 S.C. 635, 652, 576 S.E.2d 168, 177 (2003).
Most recently, our courts have recognized that “what constitutes cruel and unusual punishment, and thus, what violates the Eighth Amendment, is determined by 'evolving standards of decency that mark the progress of a maturing society.’” State v. Pittman, 373 S.C. 527, 562, 647 S.E.2d 144, 162 (2007), cert. denied, 128 S. Ct. 1872 (2008) (quoting State v. Standard, 351 S.C. 199, 204, 569 S.E.2d 325, 328 (2002)). In implementing this test, the court looks to objective evidence of how our society views a particular punishment today. State v. Wilson, 306 S.C. 498, 509-10, 413 S.E.2d 19, 26 (1992). Legislation enacted by the country’s legislatures is the “clearest and most reliable objective evidence of contemporary values.” Pittman, 373 S.C. at 563, 647 S.E.2d at 162. “[T]he Constitution requires the court’s own judgment to be brought to bear on the issue by 'asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.’” Id. at 563, 647 S.E.2d at 163 (quoting Atkins v. Virginia, 536 U.S. 304, 313 (2002)). It is not the burden of the state to establish a national consensus approving what their citizens have voted to do; rather, it is the heavy burden of the defendant to establish a national consensus against it. Wilson, 306 S.C. at 510, 413 S.E.2d at 26.
Additionally, the “'proportionality’ bedrock of Eighth Amendment jurisprudence” is equally important a principle as the “evolving standards of decency,” and “'it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’” Pittman, 373 S.C. at 564-65, 647 S.E.2d at 163 (quoting Atkins, 536 U.S. at 311). In order to establish that evolving standards of decency preclude his punishment, appellant bears the “'heavy burden’ of showing that our culture and laws emphatically and well nigh universally reject it.” Id. at 565, 647 S.E.2d at 164 (quoting Harris v. Wright, 93 F.3d 581, 583 (1996)).
In State v. Standard, 351 S.C. 199, 569 S.E.2d 325 (2002), our supreme court found, based upon sentences imposed in other cases, that lengthy sentences or sentences of life without parole imposed upon juveniles do not violate contemporary standards of decency so as to constitute cruel and unusual punishment, and that an enhanced sentence based upon a prior “most serious” conviction for a crime which was committed as a juvenile does not offend evolving standards of decency so as to constitute cruel and unusual punishment. Id. at 205-06, 569 S.E.2d at 329. Accordingly, Standard’s sentence of LWOP based on a previous “most serious” armed robbery conviction when he was seventeen and his subsequent “most serious” conviction of burglary in the first degree did not violate the Eighth Amendment.
Possession, use, and distribution of illegal drugs represent “one of the greatest problems affecting the health and welfare of our population.” Petitioner’s suggestion that his crime was nonviolent and victimless, echoed by the dissent, is false to the point of absurdity. To the contrary, petitioner’s crime threatened to cause grave harm to society.
Quite apart from the pernicious effects on the individual who consumes illegal drugs, such drugs relate to crime in at least three ways: (1) A drug user may commit crime because of drug-induced changes in physiological functions, cognitive ability, and mood; (2) A drug user may commit crime in order to obtain money to buy drugs; and (3) A violent crime may occur as part of the drug business or culture. Studies bear out these possibilities and demonstrate a direct nexus between illegal drugs and crimes of violence.
Harmelin v. Michigan, 501 U.S. 957, 1002-03 (1991) (citations omitted). Finally, the United States Supreme Court has also held a state is justified in punishing a recidivist more severely than it does a first offender. Riggs v. California, 119 S. Ct. 890, 891 (1999). Under recidivist sentencing schemes, the enhanced punishment imposed for a present offense is not to be viewed as an additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one. Id.
In light of our court’s decisions in finding sentences of LWOP imposed upon juveniles do not violate contemporary standards of decency so as to constitute cruel and unusual punishment and that an enhanced sentence based upon a prior “most serious” conviction for a crime which was committed as a juvenile does not offend evolving standards of decency so as to constitute cruel and unusual punishment, that stiff penalties for drug crimes do not violate the constitutional prohibition against cruel and unusual punishment, and in consideration of the implications of drugs on our society today as noted by the United States Supreme Court in Harmelin, combined with the United States Supreme Court’s determination that a State is justified in punishing a recidivist more severely than it does a first offender, we find Williams has failed to meet his burden of establishing evolving standards of decency preclude his punishment, or that his sentence is disproportionate to the crime.
HEARN, C.J., and GEATHERS, J., concur.
 We note our review of the video exhibit supports the officers’ testimony.


§ 27-1204 Identification of Floodplain Areas.
§ 27-1206 Activities Requiring Special Permits.
§ 27-1207 Existing Structures in Identified Floodplain Areas.
Editor’s Note: This Part was adopted 3/16/2015 by Ord. No. 2015-5, 3/16/2015, which ordinance superseded former Part 12, Floodplain District Regulations, adopted by Ord. 1999-5, 5/17/1999.
§ 1204 Identification of Floodplain Areas.
§ 1206 Activities Requiring Special Permits.
§ 1207 Existing Structures in Identified Floodplain Areas.
The Legislature of the Commonwealth of Pennsylvania has, by the passage of the Pennsylvania Flood Plain Management Act of 1978, delegated the responsibility to local governmental units to adopt floodplain management regulations to promote public health, safety, and the general welfare of its citizenry. Therefore, the Council of the Borough of Doylestown does hereby order as follows.
Reduce financial burdens imposed on the community, its governmental units, and its residents by preventing excessive development in areas subject to flooding.
It shall be unlawful for any person, partnership, business or corporation to undertake, or cause to be undertaken, any construction or development anywhere within the Borough of Doylestown unless a permit has been obtained from the Floodplain Administrator.
Editor’s Note: Former Subsection 2B, regarding minor repairs to existing buildings, which immediately followed this subsection, was repealed 3/20/2017 by Ord. 2017-3.
Severability. If any section, subsection, paragraph, sentence, clause, or phrase of this Part shall be declared invalid for any reason whatsoever, such a decision shall not affect the remaining portions of this Part, which shall remain in full force and effect, and for this purpose the provisions of this Part are hereby declared to be severable.
This Part shall not create liability on the part of the Borough of Doylestown or any officer or employee thereof for any flood damages that result from reliance on this Part or any administrative decision lawfully made thereunder.
The Zoning Officer is hereby appointed to administer and enforce this Part and is referred to herein as the "Floodplain Administrator." The Floodplain Administrator may: fulfill the duties and responsibilities set forth in these regulations; delegate duties and responsibilities set forth in these regulations to qualified technical personnel, plan examiners, inspectors, and other employees; or enter into a written agreement or written contract with another agency or private sector entity to administer specific provisions of these regulations. Administration of any part of these regulations by another entity shall not relieve the community of its responsibilities pursuant to the participation requirements of the National Flood Insurance Program as set forth in the Code of Federal Regulations at 44 CFR 59.22.
In the absence of a designated Floodplain Administrator, the Floodplain Administrator duties are to be fulfilled by the Borough Manager.
Permits Required. A permit shall be required before any construction or development is undertaken within any area of the Borough of Doylestown.
Duties and Responsibilities of Floodplain Administrator.
The Floodplain Administrator shall issue a permit only after it has been determined that the proposed work to be undertaken will be in conformance with the requirements of this Part and all other applicable codes and ordinances.
In the case of existing structures, prior to the issuance of any development permit, the Floodplain Administrator may review the history of repairs to the subject building, so that any repetitive loss concerns can be addressed before the permit is issued.
In the discharge of his/her duties, the Floodplain Administrator shall have the authority to enter any building, structure, premises or development in the identified floodplain area, upon presentation of proper credentials, at any reasonable hour to enforce the provisions of this Part.
In the event the Floodplain Administrator discovers that the work does not comply with the permit application or any applicable laws and ordinances, or that there has been a false statement or misrepresentation by any applicant, the Floodplain Administrator shall revoke the permit and report such fact to the Council for whatever action it considers necessary.
The Floodplain Administrator shall maintain in perpetuity all records associated with the requirements of this Part, including, but not limited to, finished construction elevation data, permitting, inspection and enforcement.
The Floodplain Administrator is the official responsible for submitting a biennial report to FEMA concerning community participation in the National Flood Insurance Program.
The responsibility, authority and means to implement the commitments of the Floodplain Administrator can be delegated from the person identified. However, the ultimate responsibility lies with the person identified in this Part as the Floodplain Administrator/Manager.
The Floodplain Administrator shall consider the requirements of 34 Pa. Code and the 2009 IBC and the 2009 IRC or latest revisions thereof.
Supplemental information as may be necessary under 34 Pa. Code, the 2009 IBC or the 2009 IRC.
If available, information concerning flood depths, pressures, velocities, impact and uplift forces and other factors associated with a base flood; and floodway area (See § 1204.2A), when combined with all other existing and anticipated development, will not increase the base flood elevation at any point.
Documentation, certified by a registered professional engineer or architect, to show that the cumulative effect of any proposed development within an AE Area/District without floodway (See § 1204.2B), when combined with all other existing and anticipated development, will not increase the base flood elevation more than one foot at any point within the community.
The amount, location and purpose of any materials or substances referred to in §§ 1205.3F and 1205.4 which are intended to be used, produced, stored or otherwise maintained on site.
A description of the safeguards incorporated into the design of the proposed structure to prevent leaks or spills of the dangerous materials or substances listed in § 1205.4 during a base flood.
Review of Application by Others. A copy of all plans and applications for any proposed construction or development in any identified floodplain area to be considered for approval may be submitted by the Floodplain Administrator to any other appropriate agencies and/or individuals (e.g., Planning Commission, Bucks County Conservation District, Municipal Engineer, etc.) for review and comment.
Changes. After the issuance of a permit by the Floodplain Administrator, no changes of any kind shall be made to the application, permit or any of the plans, specifications or other documents submitted with the application without the written consent or approval of the Floodplain Administrator. Requests for any such change shall be in writing, and shall be submitted by the applicant to Floodplain Administrator for consideration.
Placards. In addition to the permit, the Floodplain Administrator shall issue a placard which shall be displayed on the premises during the time construction is in progress. This placard shall show the number of the permit and the date of its issuance, and shall be signed by the Floodplain Administrator.
Work on the proposed construction or development shall begin within 180 days after the date of issuance of the development permit. Work shall also be completed within 12 months after the date of issuance of the permit, or the permit shall expire unless a time extension is granted, in writing, by the Floodplain Administrator. The issuance of development permit does not refer to the zoning approval.
The "actual start of construction" means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading, and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the "actual start of construction" means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.
Time extensions shall be granted only if a written request is submitted by the applicant, who sets forth sufficient and reasonable cause for the Floodplain Administrator to approve such a request, and the original permit is compliant with the ordinance and FIRM/FIS in effect at the time the extension is granted.
The identified floodplain area shall be any areas of the Borough of Doylestown classified as special flood hazard areas (SFHAs) in the Flood Insurance Study (FIS) and the accompanying Flood Insurance Rate Maps (FIRMs) dated March 16, 2015, and issued by the Federal Emergency Management Agency (FEMA) or the most recent revision thereof, including all digital data developed as part of the Flood Insurance Study.
The above-referenced FIS and FIRMs, and any subsequent revisions and amendments, are hereby adopted by the Borough of Doylestown and declared to be a part of this Part.
Within any floodway area, no encroachments, including fill, new construction, substantial improvements, or other development, shall be permitted unless it has been demonstrated through hydrologic and hydraulic analysis performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the community during the occurrence of the base flood discharge.
Within any floodway area, no new construction or development shall be allowed, unless the appropriate permit is obtained from the Department of Environmental Protection Regional Office.
No permit shall be granted for any construction, development, use, or activity within any AE Area/District without floodway unless it is demonstrated that the cumulative effect of the proposed development would not, together with all other existing and anticipated development, increase the BFE more than one foot at any point.
No new construction or development shall be located within the area measured 50 feet landward from the top-of-bank of any watercourse, unless the appropriate permit is obtained from the Department of Environmental Protection Regional Office.
The A Area/District shall be those areas identified as an A Zone on the FIRM included in the FIS prepared by FEMA and for which no base flood elevations have been provided. For these areas, elevation and floodway information from other Federal, State, or other acceptable sources shall be used when available. Where other acceptable information is not available, the base flood elevation shall be determined by using the elevation of a point on the boundary of the identified floodplain area which is nearest the construction site. The Borough of Doylestown may require the applicant to determine the elevation with hydrologic and hydraulic engineering techniques. Hydrologic and hydraulic analyses shall be undertaken only by professional engineers or others of demonstrated qualifications, who shall certify that the technical methods used correctly reflect currently accepted technical concepts. Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough technical review by the municipality.
The AO and AH Area/District shall be those areas identified as Zones AO and AH on the FIRM and in the FIS. These areas are subject to inundation by one-percent-annual-chance shallow flooding where average depths are between one and three feet. In Zones AO and AH, drainage paths shall be established to guide floodwaters around and away from structures on slopes.
Changes in Identification of Area. The identified floodplain area may be revised or modified by the Borough of Doylestown where studies or information provided by a qualified agency or person documents the need for such revision. However, prior to any such change to the special flood hazard area, approval must be obtained from FEMA. Additionally, as soon as practicable, but not later than six months after the date such information becomes available, a community shall notify FEMA of the changes to the special flood hazard area by submitting technical or scientific data. See § 1205.1B for situations where FEMA notification is required.
Boundary Disputes. Should a dispute concerning any identified floodplain boundary arise, an initial determination shall be made by the Borough of Doylestown, and any party aggrieved by this decision or determination may appeal to the Council. The burden of proof shall be on the appellant.
Jurisdictional Boundary Changes. Prior to development occurring in areas where annexation or other corporate boundary changes are proposed or have occurred, the community shall review flood hazard data affecting the lands subject to boundary changes. The community shall adopt and enforce floodplain regulations in areas subject to annexation or corporate boundary changes which meet or exceed those in 44 CFR 60.3.
No encroachment, alteration, or improvement of any kind shall be made to any watercourse until all adjacent municipalities which may be affected by such action have been notified by the municipality, and until all required permits or approvals have first been obtained from the Department of Environmental Protection Regional Office.
Upon receipt of the Administrator's conditional approval of map change and prior to approving the proposed encroachments, a community shall provide evidence to FEMA of the adoption of floodplain management ordinances incorporating the increased base flood elevations and/or revised floodway reflecting the postproject condition.
Upon completion of the proposed encroachments, a community shall provide as-built certifications. FEMA will initiate a final map revision upon receipt of such certifications in accordance with 44 CFR Part 67.
In A Zones, where there are no base flood elevations specified on the FIRM, any new construction or substantial improvement shall have the lowest floor (including basement) elevated up to, or above, the regulatory flood elevation determined in accordance with § 1204.2C of this Part.
The design and construction standards and specifications contained in the 2009 International Building Code (IBC) and in the 2009 International Residential Code (IRC), or the most recent revisions thereof, and ASCE 24 and 34 Pa. Code (Chapters 401 through 405, as amended) shall be utilized, where they are more restrictive.
In A Zones, where no base flood elevations are specified on the FIRM, any new construction or substantial improvement shall have the lowest floor (including basement) elevated or completely floodproofed up to, or above, the regulatory flood elevation determined in accordance with § 1204.2C of this Part.
In AO Zones, any new construction or substantial improvement shall have its lowest floor elevated or completely floodproofed above the highest adjacent grade to at least as high as the depth number specified on the FIRM.
Any nonresidential structure, or part thereof, made watertight below the regulatory flood elevation shall be floodproofed in accordance with the W1 or W2 space classification standards contained in the publication entitled "Flood-Proofing Regulations," published by the U.S. Army Corps of Engineers (June 1972, as amended March 1992), or with some other equivalent standard. All plans and specifications for such floodproofing shall be accompanied by a statement certified by a registered professional engineer or architect which states that the proposed design and methods of construction are in conformance with the above-referenced standards.
Historic Structures. Historic structures undergoing repair or rehabilitation that would constitute a substantial improvement, as defined in this Part, must comply with all ordinance requirements that do not preclude the structure's continued designation as an historic structure. Documentation that a specific ordinance requirement will cause removal of the structure from the National Register of Historic Places or the State Inventory of Historic places must be obtained from the Secretary of the Interior or the State Historic Preservation Officer. Any exemption from ordinance requirements will be the minimum necessary to preserve the historic character and design of the structure.
Floor area shall not exceed 200 square feet.
The structure will have a low damage potential.
Permanently affixed utility equipment and appliances such as furnaces, heaters, washers, dryers, etc., are prohibited.
The design and construction provisions of the UCC and FEMA #348, "Protecting Building Utilities From Flood Damages," and the International Private Sewage Disposal Code shall be utilized.
Storage. All materials that are buoyant, flammable, explosive, or in times of flooding could be injurious to human, animal, or plant life, and not listed in § 1205.4, Development Which May Endanger Human Life, shall be stored at or above the regulatory flood elevation or floodproofed to the maximum extent possible.
Wood flooring used at or below the regulatory flood elevation shall be installed to accommodate a lateral expansion of the flooring, perpendicular to the flooring grain, without causing structural damage to the building.
Uniform Construction Code Coordination. The standards and specifications contained 34 Pa. Code (Chapters 401 through 405), as amended, and not limited to the following provisions, shall apply to the above and other sections and subsections of this Part, to the extent that they are more restrictive and supplement the requirements of this Part.
International Building Code (IBC) 2009 or the latest edition thereof: Secs. 801, 1202, 1403, 1603, 1605, 1612, 3402, and Appendix G.
International Residential Building Code (IRC) 2009 or the latest edition thereof: Secs. R104, R105, R109, R322, Appendix E, and Appendix J.
Within any identified floodplain area, any new or substantially improved structure of the kind described in Subsection A, above, shall be prohibited within the area measured 50 feet landward from the top-of-bank of any watercourse.
Within any floodway area, any structure of the kind described in Subsection A, above, shall be prohibited. Where permitted within any identified floodplain area, any new or substantially improved residential structure of the kind described in § 1205.4A, above, shall be elevated to remain completely dry up to at least 1 1/2 feet above base flood elevation and built in accordance with §§ 1205.1, 1205.2 and 1205.3.
New or Substantially Improved Structures.
Designed to prevent pollution from the structure or activity during the course of a base flood.
Any such structure, or part thereof, that will be built below the regulatory flood elevation shall be designed and constructed in accordance with the standards for completely dry floodproofing contained in the publication "Flood-Proofing Regulations" (U.S. Army Corps of Engineers, June 1972, as amended March 1992), or with some other equivalent watertight standard.
Special Requirements for Subdivisions and Development. All subdivision proposals and development proposals containing at least 50 lots or at least five acres, whichever is the lesser, in identified floodplain areas where base flood elevation data are not available shall be supported by hydrologic and hydraulic engineering analyses that determine base flood elevations and floodway information. The analyses shall be prepared by a licensed professional engineer in a format required by FEMA for a conditional letter of map revision and letter of map revision. Submittal requirements and processing fees shall be the responsibility of the applicant.
Have all ductwork and utilities, including HVAC/heat pump, elevated to the regulatory flood elevation.
Installation of manufactured homes shall be done in accordance with the manufacturers' installation instructions as provided by the manufacturer. Where the applicant cannot provide the above information, the requirements of Appendix E of the 2009 International Residential Building Code or the U.S. Department of Housing and Urban Development's "Permanent Foundations for Manufactured Housing," 1984 Edition, draft or latest revision thereto, and 34 Pa. Code Chapters 401 through 405 shall apply.
Consideration shall be given to the installation requirements of the 2009 IBC, and the 2009 IRC, or the most recent revisions thereto, and 34 Pa. Code, as amended, where appropriate and/or applicable to units where the manufacturers' standards for anchoring cannot be provided or were not established for the proposed unit's installation.
Meet the permit requirements for manufactured homes in § 1205.6.
A written request, including a completed permit application form.
Plans and profiles of all proposed sanitary and storm sewer systems, water supply systems, and any other utilities and facilities.
Editor's Note: Section 302 of the Flood Plain Management Act; see 32 P.S. § 679.302.
An evacuation plan which fully explains the manner in which the site will be safely evacuated before or during the course of a base flood.
Within three working days following receipt of the application, a complete copy of the application and all accompanying documentation shall be forwarded to the County Planning Commission, by registered or certified mail, for its review and recommendations. Copies of the application shall also be forwarded to the Borough of Doylestown Planning Commission and Borough Engineer for review and comment.
If an application is received that is incomplete, the Borough of Doylestown shall notify the applicant in writing, stating in what respect the application is deficient.
If the Borough of Doylestown decides to disapprove an application, it shall notify the applicant, in writing, of the reasons for the disapproval.
If the Borough of Doylestown approves an application, it shall file written notification, together with the application and all pertinent information, with the Department of Community and Economic Development, by registered or certified mail, within five working days after the date of approval.
Before issuing the special permit, the Borough of Doylestown shall allow the Department of Community and Economic Development 30 days, after receipt of the notification by the Department, to review the application and decision made by the Borough of Doylestown.
If the Borough of Doylestown does not receive any communication from the Department of Community and Economic Development during the thirty-day review period, it may issue a special permit to the applicant.
If the Department of Community and Economic Development should decide to disapprove an application, it shall notify the Borough of Doylestown and the applicant, in writing, of the reasons for the disapproval, and the Borough of Doylestown shall not issue the special permit.
In addition to the requirements of § 1205 of this Part, the following minimum requirements shall also apply to any proposed development requiring a special permit. If there is any conflict between any of the following requirements and those in § 1205 of this Part or in any other code, ordinance, or regulation, the more restrictive provision shall apply.
The structure will survive inundation by waters of the base flood without any lateral movement or damage to either the structure itself, or to any of its equipment or contents below the BFE.
The lowest floor (including basement) will be elevated to at least 1 1/2 feet above base flood elevation.
The occupants of the structure can remain inside for an indefinite period of time and be safely evacuated at any time during the base flood.
Prevent any significant possibility of pollution, increased flood levels or flows, or debris endangering life and property.
All hydrologic and hydraulic analyses shall be undertaken only by professional engineers or others of demonstrated qualifications, who shall certify that the technical methods used correctly reflect currently accepted technical concepts. Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough technical review by the Borough of Doylestown and the Department of Community and Economic Development.
Existing Structures. The provisions of this Part do not require any changes or improvements to be made to lawfully existing structures. However, when an improvement is made to any existing structure, the provisions of § 1207, Subsection 2, shall apply.
No expansion or enlargement of an existing structure shall be allowed within any AE Area/District without floodway that would, together with all other existing and anticipated development, increase the BFE more than one foot at any point.
Any modification, alteration, reconstruction, or improvement of any kind to an existing structure to an extent or amount of 50% or more of its market value shall constitute a substantial improvement and shall be undertaken only in full compliance with the provisions of this Part.
The above activity shall also address the requirements of 34 Pa. Code, as amended, and the 2009 IBC and the 2009 IRC.
Within any floodway area/district (see § 1204, Subsection 2A), no new construction or development shall be allowed, unless the appropriate permit is obtained from the Department of Environmental Protection Regional Office.
Within any AE Area/District without floodway (see § 1204, Subsection 2B), no new construction or development shall be located within the area measured 50 feet landward from the top-of-bank of any watercourse, unless the appropriate permit is obtained from the Department of Environmental Protection Regional Office.
General. If compliance with any of the requirements of this Part would result in an exceptional hardship to a prospective builder, developer or landowner, the Borough may, upon request, grant relief from the strict application of the requirements.
No variance shall be granted for any construction, development, use, or activity within any floodway area/district that would cause any increase in the BFE.
No variance shall be granted for any construction, development, use, or activity within any AE Area/District without floodway that would, together with all other existing and anticipated development, increase the BFE more than one foot at any point.
Except for a possible modification of the regulatory flood elevation requirement involved, no variance shall be granted for any of the other requirements pertaining specifically to development regulated by special permit or to development which may endanger human life.
In granting any variance, the Borough of Doylestown shall attach whatever reasonable conditions and safeguards it considers necessary in order to protect the public health, safety, and welfare, and to achieve the objectives of this Part.
Create nuisances, cause fraud on, or victimize the public, or conflict with any other applicable state or local ordinances and regulations.
A complete record of all variance requests and related actions shall be maintained by the Borough of Doylestown. In addition, a report of all variances granted during the year shall be included in the annual report to FEMA.
Notwithstanding any of the above, however, all structures shall be designed and constructed so as to have the capability of resisting the one-percent annual chance flood.
Adoption. This Part shall be effective on March 16, 2015, and shall remain in force until modified, amended or rescinded by the Borough of Doylestown, Bucks County, Pennsylvania.


text:
Complainant is eDreams, Inc., Wilmington, Delaware, United States of America, represented by Ubilibet, Spain.
Respondent is Choi Polo, Siko Dolp, Thailand.
The disputed domain name <edreans.com> is registered with OnlineNic, Inc. d/b/a China-Channel.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 6, 2009. On November 10, 2009, the Center transmitted by email to OnlineNic, Inc. d/b/a China-Channel.com a request for registrar verification in connection with the disputed domain name. On November 11, 2009, OnlineNic, Inc. d/b/a China-Channel.com transmitted by email to the Center its verification response confirming that 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”).
The Center appointed Nasser A. Khasawneh as sole panelist in this matter on December 14, 2009. 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.
Complainant owns numerous trademark registrations in many countries.
Among Complainant's earlier registrations for the mark EDREAMS are the following: Registration number 195781 (0790-2000), granted in Class 35 on June 19, 2001 (Slovakia); Registration number 2000-03323, granted with a priority date of October 14, 1999 in Classes 09, 35, 36, 38, 39, 41 and 42 on November 22, 2000 (Norway); and Registration number 235639 (153616), granted in Class 35 on August 27, 2001 (Czech Republic). Complainant also owns dozens of domain names with a variety of top-level and geographic extensions, based on its trademark and small variations or misspellings.
The disputed domain name was registered on August 19, 2004, and at the time the Complaint was filed, routed to a parking page displaying a search tool and links to travel-related online services. Shortly after the Complaint was filed, the disputed domain name was changed to redirect users to Complainant's websites.1 Respondent's website has also routed to Complainant's websites from time to time in the past, as discussed below.
Complainant avers that its company has been doing business since 2000. Since then, Complainant avers, its company has developed a large worldwide presence as an online travel booking agent. In 2008, according to Complainant's allegations and exhibits submitted with the Complaint, Complainant invoiced over 607 million Euros to customers, has the largest market share of any online travel business in Southern Europe, and in 2009, sold ten percent of the air travel tickets sold in the Spanish market.
Complainant contends that this is a case of “typo squatting,” in which Respondent seeks to direct users who misspell Complainant's name to Respondent's own parking page website for Respondent's own commercial purposes. Complaint identifies many trademark registrations for the term “edreams,” noting that Complainant's earliest three EDREAM trademark registrations were granted before registration of the disputed domain name.
In summary, Complainant alleges that (1) the disputed domain name is confusingly similar to trademarks in which Complainant has rights, (2) Respondent has no rights or legitimate interests in the disputed domain name, and (3) Respondent registered and is using the disputed domain name in bad faith.
To support its allegations of bad faith registration, Complainant alleges that Respondent's deliberate misspelling of Complainant's EDREAMS trademark establishes Respondent's prior awareness, citing EasyGroup IP Licensing Limited v. John Sansone, WIPO Case No. D2004-0763. To support bad faith use, Complainant avers that the website to which the disputed domain name routes is inactive, displaying only a parking page for five years.
On these grounds, Complainant requests transfer.
The Policy is intended to resolve disputes concerning allegations of abusive domain name registration or acquisition in an efficient manner. Fundamental due process requirements must nonetheless be met. The requirement that a respondent have notice of proceedings that may substantially affect its rights is such a fundamental requirement. The Policy and the Rules establish procedures to assure that respondent receive adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., paragraph 2(a) of the Rules).
The Center sent to Respondent by courier notification of these proceedings. The Center used the address listed in the WhoIs record for the disputed domain name, but the courier company was unable to deliver to the address indicated in Respondent's WhoIs record. The Center also notified Respondent by using an email address provided by the registrar in its verification response to the Center, but the electronic notifications returned delivery errors.
Complainant must establish these elements even if Respondent does not submit a response. See, e.g., The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064. In the absence of a Response, the Panel may also accept as true the factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini, WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009).
Although the disputed domain name <edreans.com> is not identical to Complainant's trademarks listed above, the Panel agrees with Complainant that Respondent's domain name is confusingly similar to the EDREAM trademarks.
Panels disregard the domain name suffix in evaluating confusing similarity. E.g., VAT Holding AG v. Vat.com, WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc., WIPO Case No. D2006-1315.
Removing the suffix, the disputed domain name is almost identical to Complainant's trademarks. The fact that Respondent's domain name substitutes the single letter “n” for the letter “m” which is present in Complainant's EDREAMS mark does not change the Panel's conclusion that the domain name is confusingly similar to Complainant's trademarks. Without the gtld designation, the remaining word in the disputed domain name “edreans” and Complainant's trademark EDREAMS are similar in appearance and are phonetically very close.
The Panel believes that, on a balance of probabilities, Complainant's trademark was intentionally misspelled in order to attract the flow of Internet users who have mistyped Complainant's URL address and to increase traffic to its website. Such “typo squatting” has regularly been condemned by UDRP panels. E.g., The Nasdaq Stock Market, Inc. v. NSDAQ.COM, NASDQ.COM and NASAQ.COM, WIPO Case No. D2001-1492, cited in Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556; VeriSign, Inc. v. Onlinemalls, WIPO Case No. D2000-1446.
The Panel finds, therefore, that the disputed domain name is confusingly similar to Complainant's registered EDREAMS trademark.
Complainant also owns European Community trademark registration number 005223045, issued on July 16, 2007 for the mark EDREANS in classes 36, 38 and 39. It is conceivable that this registered trademark, granted three years after registration of the disputed domain name, could be relevant to the Panel's determination under Policy paragraph 4(a)(i). See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Question 1.4. (consensus view that “[r]egistration of a domain name before a complainant acquires trademark rights in a name does not prevent a finding of identity or confusing similarity”).
There is no evidence in the record respecting Complainant's actual use of the registered EDREANS trademark, and there is abundant evidence respecting the widespread use of Complainant's several EDREAMS marks. Because the Panel agrees with Complainant that this is essentially a case in which Respondent registered a deliberate misspelling of Complainant's principal EDREAMS marks, the Panel finds it preferable to consider the parties' rights in this proceeding with reference to Complainant's EDREAMS marks and not the more recently registered EDREAN mark. In this instance, therefore, the Panel's ruling under Policy paragraph 4(a)(i) is based on confusing similarity and not on identity.
In conclusion, the requirements in paragraph 4(a)(i) of the Policy are fulfilled.
As the Complaint exhibits show, Respondent's website has displayed a parking page, with links to third-party travel agencies and air ticket sales websites. By diverting traffic to third parties and their products, the Panel finds that Respondent is using Complainant's marks for its own commercial purposes. See, e.g., The Bear Stearns Companies Inc. v. Darryl Pope, WIPO Case No. D2007-0593 (“[t]he Panel is free to infer that Respondent is likely receiving some pecuniary benefit . . . in consideration of directing traffic to that site” (citing COMSAT Corporation v. Ronald Isaacs, WIPO Case No. D2004-1082)). See also Fat Face Holdings Ltd v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0626; Sanofi-aventis v. MontanyaILtd., WIPO Case No. D2006-1079.
In the absence of a Response, the Panel accepts as true Complainant's allegations that Respondent has no authorization to use Complainant's trademarks. The Panel also accepts Complainant's uncontested allegation that Respondent is not known by the disputed domain name.
Filing no response, Respondent has not rebutted Complainant's prima facie case or invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of its “rights or legitimate interests” in use of the disputed domain name.
Using a domain name to intentionally attract Internet users, for commercial gain, by creating a likelihood of confusion, may be evidence of bad faith registration and use. Policy, paragraph 4(b)(iv). See, e.g., L´Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc, WIPO Case No. D2005-0623. Panels may draw inferences about bad faith registration or use in light of the circumstances, including the provision of false contact details in violation of the registration agreement, or failure to reply to a complaint. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
The Panel infers that Respondent acquired the disputed domain name with awareness of Complainant's business because Complainant's EDREAMS trademark was already registered in various countries when the disputed domain name was registered in 2004, and, based on exhibits to the Complaint, Complainant's business had developed a broad Internet presence using the trademark by 2004. The Panel also agrees with Complainant's suggestion that this is a typical case of typo squatting: Respondent's intention was to register a name to direct users who misspelled “edreams” to Respondent's own website. E.g., EasyGroup IP Licensing Limited v. John Sansone, supra.
The Panel's inference that Respondent had awareness of Complainant's rights is further supported by the content of Respondent's website, which includes links to travel agencies and online air ticket sales, the same commercial area in which Complainant uses its trademarks.
The Panel finds therefore that the original domain name registration was made with the intention of trading on the value of Complainant's trademarks. The Panel concludes that Respondent deliberately attempted to attract Internet users to its website for commercial gain, by creating a likelihood of confusion with Complainant's mark. Under the circumstances, this constitutes registration in bad faith for purposes of the Policy.
As noted above, Respondent's website shows that the disputed domain name is used to promote the products of competitors of Complainant. The Panel concludes that this activity evidences bad faith use by Respondent. Pfizer Inc. v. jg a/k/a Josh Green, Supra (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; Downstream Technologies, LLC v. Bartels System GmbH, WIPO Case No. D2003-0088).4 Respondent's apparent failure to provide accurate contact details in accordance with his obligations under the registration agreement and the absence of filing a Response to the Complaint provide further support for the Panel's finding of bad faith.
The Panel therefore concludes that the disputed domain name was registered and is being used by Respondent in bad faith under paragraph 4(b)(iv) of the Policy.
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, <edreans.com> be transferred to Complainant.
1 The Panel has undertaken limited research by visiting archives of the web pages to which the disputed domain name routes. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions. The Panel has also viewed online archives of the web pages to which the disputed domain name has routed in the past, on the Internet Archive at “www.archive.org”.
2 Shortly after the Complaint was filed, Respondent's website displayed the parking page with third-party links, an appearance similar to that shown in the exhibits to the Complaint. As of this writing, however, the webpage has again been changed to redirect traffic to one of Complainant's Edreams websites.
The Panel finds that this recent change of Respondent's website (and the prior redirection to Complainant's websites from time to time) cannot create legitimate rights or interests for Respondent. It would have been helpful to the Panel for Complainant to come forward with the information that the website had at times redirected to Complainant's own websites, and to address the potential significance of that use by Respondent.
3 Complainant also avers that Respondent probably intended to attempt to sell the disputed domain name to Complainant. While this may be a reasonable supposition, the Panel cannot make a finding given the lack of evidence on the record.
4 Since Respondent's website has from time to time redirected users to various websites of Complainant, and because the Panel infers that Respondent is earning revenues from the links to other websites that appear on the parking page, the Panel does not agree with Complainant's allegation that the website has been inactive for five years.

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