text:
Welcome to apnea-academy.upsolutions.eu, the official online shop of Up Solutions SAS.
1.8. The term “Parties” refers to Up Solutions SAS and the Customer. 1.9. “Consumer” is the Customer as natural person who acts for purposes other than those related to the business, commercial, handcrafted or professional activity he/she carries out.
1-to select the Product and to click on the button “Add to cart”: at this step, the summary of the main Product’s features and the total Price, including the shipping cost (except possible customs duties, if applicable) and the taxes, will appear.
2-to click on the button “Proceed to Checkout” and to fill in the request’s form (“Order”), by stating the preferred payment modality; before going on to the next step, the Customer shall verify that the data he/she provided are correct. The Customer is responsible for the truthfulness of the data he/she provided.
3-to read the Contract’s general terms and conditions, by clicking on the relevant button, and accept them by flagging the box close to the wording “Accept Terms and Conditions”.
2.3. Once the purchase is completed, the Customer will receive a confirmation of the order, which will point out: the type of purchased Products, the Price of each Product, the applicable taxes, the shipping cost and the chosen payment modality; the right of withdrawal (please refer to the following Art. 8) - which can be exercised provided that the relevant conditions necessary are met - will also be specified.
2.4. The Contract is concluded and binding upon both Parties when the order confirmation is issued by Up Solutions SAS and provided to the e-mail address indicated by the Customer upon the registration to the Site.
2.5. The Contract will be filed at discretion for the Customer's records.
3.2. The Products’ delivery will take place within 24-48 hours for Italy, within 48-72 hours for Europe, within 3 or more working days for non-EU countries. The delivery dates indicated on the Site are merely approximate and not binding upon Up Solutions SAS. At any rate, the delivery will take place at the latest within 30 days from the Contract’s conclusion.
3.3. In the event of missed Product's delivery within the agreed time limit (30 days), the Customer must exhort Up Solutions SAS to finalise the delivery within an appropriate additional time and will be entitled to terminate the contract should such additional time expire without the delivery being finalised.
3.4. Should one or more Products be out of stock after the order being made, Up Solutions SAS will inform the Customer by e-mail and will carry out the delivery of the other Products ordered by the Customer. The partial delivery of the ordered Products will still be valid and the Customer will not be entitled to either refuse the delivery or the payment for the delivered Products, or claim compensation. The Customer will only be entitled to receive the full refund of the lacking Product or Products’ Price, in case of advance payment.
4.1. Prices are expressed in Euros (€). Prices include the VAT (Value Added Tax) in force at the time of the order and it varies according to the different type of Products.
4.2. The ensuing total Price at the end of the purchase procedure is inclusive of transport charges, but it does not include custom duties and possible additional charges on the sale price, necessary to import the Products in a foreign country. Any supplementary charges relating to clearance procedures shall be paid exclusively by the receiving party.
5.1. In case of impossibility to perform the Contract, in whole or in part, for the Product's unavailability or due to force majeure, UP Solutions SAS will inform the Customer by e-mail within 30 days from the order submission day and will not be liable vis-à-vis the Customer, except for the refund of the amounts that were already paid by the Customer.
6.1. The Contract does not award to the Customer any right about trademarks, logos, and/or other distinctive marks of any kind used in or displayed on the Site pages, or about the relevant contents.
7.1. According to art. 52 and following of the Italian Legislative Decree n.21/2014, the Customer-Consumer is entitled to terminate the Contract, without any liability and without specifying the reason thereof, by and not later than 14 days from the Product's receipt (or in case of numerous Products being purchased with a sole order and being delievered separately, the Customer's termination right will run from receipt of the last ordered Product).
7.2 To enforce the right of withdrawal, within the deadline stated in the previous point 8.1, the Customer must inform Up Solutions SAS about his/her intention to withdraw by submitting any other explication about his choice of terminating the Contract; form and/or declaration can be sent to Up Solutions SAS offices by ordinary post, or by e-mail ( info@upsolutions.eu ).
7.3. In case of enforcement of the withdrawal right, the Customer must return to Up Solutions SAS the Products he/she had received, by posting such Products at Up Solutions SAS headquarters in Turin, Via Monfalcone n. 88 (ZIP CODE 10136), without improper delay and in any case within 14 days following his/her written communication to Up Solutions SAS about his/her choice to terminate the Contract; the time limit is respected if the Customer returns the Products before the above-mentioned deadline of 14 days.
7.4. The direct cost for returning the Products shall be borne by the Customer.
7.5. The Customer must return the Products in a good preservation state, without removing the original labels. The returned items must be accurately packed in order to protect the original covers from any damage, writing or labelling. The Customer is liable for the value’s decrease of the Products deriving from a handling other than the one needed for establishing its nature, features and working.
7.6. If the withdrawal right is exercised in accordance with the above-mentioned instructions, Up Solutions SAS will pay back – within 14 days from receipt of the withdrawal communication – the whole Price received by the Customer, only with respect to the order to which the withdrawal relates. Up Solutions SAS will use the same payment modality used by the Customer for the purchase, provided that no further costs for the refund are entailed. However, under art. 56, paragraph III, of the Italian Legislative Decree. n. 21/2014, Up Solutions SAS can withhold the refund if either the Products arrive or the Customer proves that he returned the Products, depending on what situation occurs first.
7.7. The withdrawal right may be exercised by the natural person, who acts for purposes that do not fall within and may are not related to his/her business, commercial, handcrafted or professional activity. Accordingly, the withdrawal right does not apply in connnection with purchases carried out by retailers and/or companies.
7.8. The withdrawal right is also excluded, under the art. 59 Legislative Decree. n. 21/2014, in the event of supply of customized Products (see previous art. 2.6.), as well as sealed Products which are not suitable to be returned for sanitary reasons or related to the health’s protection, and/or which have been opened after the relevant delivery; as well as in case of audio or video recordings, which have been opened after the delivery.
7.9. No replacements or refunds are possible for customized products if requested by the customer (personalized products with name and/or number, with badges, with initials, with the exception of damaged or defective products); for swimsuits; Discounted Products (clearance or special promotions) are not refundable; a replacement of the item or a voucher of the same value to be spent on the next purchase are granted.
8.1. If the Customer is a Consumer and complaints defects of the Product, he/she may ask for either the free restoration or the replacement of the Product, provided that its replacement is possibile and not extremely costly. Should the foregoing options not be possible or extremely costly, the Customer may either ask for a congrous reduction of the Price or terminate the Contract. The termination is however excluded in case of minor complaints.
8.2. Following the Customer's notification, UP Solutions SAS will arrange for a pick-up of the Product at the Customer's address within a congruous time limit and, upon a check of the defect, for a replacement of the same or – if the conditions necessary are met – for the partial or full refund of the Price. At any rate, Up Solutions SAS can try to find a different solution, as for example the replacement of the Product with a different one but of equivalent value, to be chosen among the Products displayed on the Site, or the release of a voucher equivalent to the amount paid by the Customer, to be spent later on by the latter by contacting the Customer Service; if the Customer accepts, Up Solutions SAS will provide for the proposed solution to be fulfilled.
8.3. If the Customer fails to notify Up Solutions SAS with his/her compaint within 2 months from the defect discovery, the rights set forth under art. 9.1 will not be enforceable.
9.1. The data provided by the Customer and necessary for the duly fulfillment of the Contract will be processed in compliance with the provision of the 2003 Legislative Decree n. 196 regarding “Personal Data Protection”. For further information, please see the “Privacy” section.
10.1. All communications between the Parties shall be made in writing and provided to the address of the other party indicated in the Contract, as regards Up Solutions SAS, and in the order, as regards the Customer.
10.2. All communications sent to the e-mail address of the other party, as above-mentioned, will be considered effectively sent in writing.
11.1. The parties, by contracting under the previous Art. 2, agree that the Contract will be governed by and interpreted according to Italian law. The Parties acknowledge that the application to this Contract of the United Nations Agreement on the contracts for the International Sale of Goods is expressly excluded.
-in any other case, exclusively the Court of Turin, Italy.
1.1.“Sito” è il sito internet http://apnea-academy.upsolutions.eu/, dedicato alla vendita del merchandising ufficiale Apnea Academy.
1.3. Up Solutions SAS, con sede in Via Monfalcone, 88 – 10136 Torino, C.F./P. IVA n. 10426510011, nr REA 1133118.
1.9. “Parti” sono Up Solutions SAS e il Cliente.
2.4. Il contratto si intende concluso e vincolante per le parti quando EPI trasmette al Cliente la conferma d'ordine all'indirizzo di posta elettronica dallo stesso indicato nella registrazione al sito.
3.2. Tempi di consegna dei prodotti: 24-48 ore per l’Italia, 48-72 ore per l’Europa, 3 o più giorni lavorativi per i Paesi extra Europa, trascorse 24 ore dalla data di ricevimento dell’ordine da parte di Up Solutions SAS. I tempi sono indicativi e non strettamente vincolanti per Up Solutions SAS. In ogni caso la consegna avverrà al più tardi entro trenta giorni dalla data di conclusione del contratto.
3.3. In caso di mancata consegna dei beni entro il termine pattuito ovvero entro il termine di giorni trenta, il Cliente deve invitare Up Solutions SAS ad effettuare la consegna entro un termine supplementare appropriato alle circostanze ed è legittimato a risolvere il contratto solo se il termine supplementare cosi' concesso dovesse scadere senza che i beni gli siano stati consegnati.
3.4. In caso di indisponibilità di uno o più prodotti, sopravvenuta successivamente alla conferma d’ordine, Up Solutions SAS ne darà notizia al Cliente via mail, salvo procedere comunque alla spedizione dei restanti prodotti ordinati dal Cliente stesso. In tal caso il contratto rimarrà valido limitatamente ai prodotti effettivamente spediti e il Cliente non potrà rifiutare la consegna parziale o il pagamento della merce effettivamente consegnata, né avrà diritto di ottenere risarcimenti o indennizzi, ma solo di ricevere la restituzione del prezzo corrispondente al prodotto o ai prodotti indisponibili, ove già corrisposto.
4.1. I prezzi sono espressi in Euro (€) e comprendono l’Imposta sul Valore aggiunto (I.V.A) vigente per le rispettive categorie merceologiche di appartenenza.
4.3. Il pagamento del prezzo dovrà essere effettuato con Paypal o Carta di credito.
4.4. La richiesta di fatturazione deve essere effettuata contestualmente all’ordine.
5.1. Nel caso in cui il contratto non possa avere esecuzione, neppure in parte, per indisponibilità della merce o per altra causa di forza maggiore, Up Solutions SAS né darà comunicazione via mail al Cliente entro trenta giorni a decorrere dal giorno della trasmissione dell’ordine e sarà liberata da ogni sua obbligazione, salvo il rimborso delle somme eventualmente già da quest’ultimo corrisposte.
6.1. Il contratto non conferisce al Cliente alcun diritto su marchi, loghi e altri segni distintivi di vario genere presenti nel sito, né sui relativi contenuti.
7.1. In base al disposto degli artt. 52 e ss. d.lgs n. 21/2014, il Cliente-consumatore ha diritto di recedere dal contratto, senza penali e senza necessità di specificarne il motivo, entro e non oltre quattordici giorni dal ricevimento della merce (o, nel caso di beni multipli ordinati mediante un solo ordine e consegnati separatamente, dal giorno in cui il Cliente o un terzo da lui designato, diverso dal vettore, acquisisce il possesso fisico dell'ultimo bene).
7.3. In caso di esercizio del diritto di recesso, il Cliente è tenuto a restituire la merce ricevuta ad Up Solutions SAS, facendola pervenire presso la sua sede in Torino, Via Monfalcone n. 88 (CAP 10136), senza indebito ritardo e comunque entro i quattordici giorni successivi alla data in cui ha comunicato la sua decisione di recedere dal contratto; il termine si considera rispettato qualora il Cliente rispedisca i beni prima della scadenza del periodo di quattordici giorni.
7.4. Il costo diretto della restituzione dei beni è a carico del Cliente.
7.5. Il Cliente è tenuto a restituire la merce in stato integro di conservazione e con etichette originali non rimosse. L'imballo dei prodotti deve essere accurato, al fine di salvaguardare gli involucri originali da danneggiamenti, apposizioni di scritte o etichette. Il consumatore e' responsabile della diminuzione del valore dei beni risultante da una manipolazione dei beni diversa da quella necessaria per stabilire la natura, le caratteristiche e il funzionamento degli stessi.
7.6. Ove il diritto di recesso sia stato esercitato conformemente alle suddette disposizioni, Up Solutions SAS provvederà, entro quattordici giorni dalla ricezione della comunicazione di recesso, a restituire al Cliente tutti i pagamenti ricevuti, in relazione all’ordine cui si riferisce il recesso stesso, utilizzando lo stesso mezzo di pagamento usato dal Cliente per la transazione iniziale ove ciò non comporti al Cliente costi conseguenti al rimborso; tuttavia, a’ sensi dell’art. 56, comma III, d.lgs. n. 21/2014, è facoltà di Up Solutions SAS, il ' trattenere il rimborso finché non abbia ricevuto i beni oppure finché il Cliente non abbia dimostrato di aver rispedito i beni, a seconda di quale situazione si verifichi per prima.
7.7. Il diritto di recesso è facoltà delle sole persone fisiche che agiscono per scopi estranei all'attività imprenditoriale, commerciale, artigianale o professionale eventualmente svolta (consumatori). Pertanto, sono esclusi dal diritto di recesso, tra l’altro, rivenditori e aziende.
7.8. Il diritto di recesso è parimenti escluso, a’ sensi dell’art. 59 d.lgs. n. 21/2014, nel caso di fornitura di beni personalizzati (si veda precedente art. 2.6.), nonché di beni sigillati che non si prestino ad essere restituiti per motivi igienici o connessi alla protezione della salute e che sono stati aperti dopo la consegna.
7.9. Non si effettuano rimborsi o sostituzioni sui prodotti personalizzati su richiesta espressa del cliente (es.: prodotti personalizzati con nomi e/o numeri, con patch, con iniziali, a eccezione di prodotti difettosi o danneggiati); costumi; Per prodotti a prezzo scontato (sezione Outlet, promozioni speciali) non si effettuano rimborsi ma sono possibili sostituzioni o la richiesta di un buono di valore corrispondente all’importo pagato, da utilizzare successivamente.
ART. 8 - DIRITTI DEL CLIENTE IN CASO DI DIFFORMITA’ DEI PRODOTTI.
8.1. Nell’eventualità in cui il Cliente ravvisi un difetto di conformità del prodotto, e sia un consumatore, lo stesso ha facoltà di chiederne la riparazione o la sostituzione senza spese, ove possibili e non eccessivamente onerose, e qualora queste non siano possibili ovvero risulterebbero eccessivamente onerose, può chiedere una congrua riduzione del prezzo o la risoluzione del contratto. La risoluzione del contratto è peraltro esclusa in caso di difetti di conformità di lieve entità.
8.2. A seguito della denuncia Up Solutions SAS provvederà in un congruo termine al ritiro del prodotto presso il Cliente e, previa verifica della sussistenza della difformità, alla sostituzione dello stesso ovvero, ricorrendone i presupposti, al rimborso parziale o integrale del prezzo; è comunque facoltà di Up Solutions SAS proporre rimedi alternativi disponibili, come, a titolo di esempio, la sostituzione del prodotto con altro di diversa natura ma valore equivalente, scelto tra quelli esposti nel sito, ovvero il rilascio di un buono di valore corrispondente all’importo pagato, da utilizzare successivamente contattando il Servizio Clienti; nel caso in cui il Cliente accetti, Up Solutions SAS provvederà ad eseguire la prestazione rimediale specificamente proposta.
9.1. I dati comunicati dal Cliente necessari all'esecuzione del contratto sono trattati in conformità alle disposizioni del D. Lgs. 2003 n. 196 in materia di Protezione dei dati personali. Per ulteriori informazioni il Cliente può consultare la sezione Privacy del presente sito.
10.1. Tutte le comunicazioni tra le parti dovranno essere effettuate per iscritto e inviate all'indirizzo dell'altra parte indicato, per Up Solutions SAS, nelle presenti condizioni di contratto e, per il Cliente, nell'ordine dallo stesso inviato.
10.2. Si intendono validamente inviate per iscritto anche le comunicazioni trasmesse all'indirizzo di posta elettronica dell'altra parte, come sopra individuato.
11.1. Le parti, stipulando il contratto a’ sensi del precedente art. 2, convengono che lo stesso è disciplinato dalla legge italiana e sottoposto alla giurisdizione italiana, e che è espressamente esclusa l'applicazione ad esso della Convenzione delle Nazioni Unite sui Contratti per la Vendita Internazionale di Beni.
11.2. Per ogni controversia concernente la validità, esecuzione o interpretazione del contratto ed i relativi effetti sarà competente: a) il Foro del luogo di residenza o domicilio del Cliente, se il Cliente è un consumatore ed è residente o domiciliato in Italia; b) in via esclusiva il Foro di Torino, in ogni altro caso.

matches:
Art. 8
art. 52
art. 56
art. 59
art. 2
art. 9
Art. 2
art. 2
ART. 8
art. 2


text:
The Complainant is F Hoffmann-La Roche AG of Basel, Switzerland, represented internally.
The disputed domain name <buyxenical120mg.com> is registered with Internet.bs Corp. (the “Domain Name”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center") on July 12, 2012. On the same date, the Center transmitted by email to Internet.bs Corp. a request for registrar verification in connection with the Domain Name. On July 13, 2012, Internet.bs Corp. 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 transmitted the Complaint to the Respondent, and advising that the proceedings commenced on July 17, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was August 6, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 7, 2012.
The e-mail dispatches were sent by the Center to the e-mail addresses furnished by the Registrar in respect of the Respondent, as well as those of its Administrative and Technical contacts. It was also sent by e-mail to the Registrar. In addition the Center endeavored to effect delivery of a written copy by courier. All these attempts apparently failed, the courier advising that the postal address and the telephone number furnished were wrong and delivery could not be effected.
The Center appointed Archibald Findlay SC as the sole panelist in this matter on August 14, 2012. 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.
Enquiries by the Panel, made of the Center, and examination of the case file, also established that it employed reasonably available means to achieve actual notice to the Respondent. The Panel is therefore satisfied that the Center has accordingly complied with the requirements of paragraph 2(a) of the Rules (Fairmont Hotel Management L.P. v. Puts, WIPO Case No. D2001-0431). The Respondent, however, has apparently not communicated with the Center or attempted to respond to the Complaint.
The following facts and circumstances are to be found in the Complaint and its annexes and, in the absence of challenge, can be accepted as true.
The Complainant, together with its affiliated companies, is one of the world's leading research-focused healthcare groups in the fields of pharmaceuticals and diagnostics and has global operations in more than 100 countries.
The Complainant's mark XENICAL is protected as a trademark in a multitude of countries worldwide, in support of which the Complainant submitted international registration certificates in respect of that trademark. The earliest registration of the trademark evidenced is August 5, 1993.
The trademark designates an oral prescription weight loss medication used to help obese people lose weight and keep that weight off.
The disputed domain name was registered on July 4, 2012.
The disputed domain name is confusingly similar to the Complainant’s trademark in that it incorporates the Complainant's trademark in its entirety and the additional terms “buy” and “120mg” do not sufficiently distinguish it from the trademark.
The Complainant has exclusive rights in and to its trademark and no licence, permission or authorization or other form of consent has been granted for use of the trademark in any domain name.
It is obvious that the Respondent is using the disputed domain name for commercial gain and with the purpose of capitalising on the fame of the Complainant's trademark.
As appears from the Respondent's website, the Respondent is using the disputed domain name to redirect Internet users to an online pharmacy.
Accordingly, the Respondent has no right or legitimate interest in respect of the disputed domain name.
As appears from the website of the Respondent, the Complainant submits that it is clear that the Respondent has intentionally sought to attract Internet users to its own website by creating a likelihood of confusion with the trademark of the Complainant as to the source, affiliation and endorsement of the Respondent's website, or of the products and services referred to or linked thereto.
By so using the disputed domain name the Respondent is intentionally misleading consumers and may generate unjustified revenue, thus illegitimately capitalising on the Complainant's trademark reputation.
By its failure to respond, the Respondent is in default and, in accordance with paragraphs 5(e) and 14 of the Rules the Panel shall now deal with the matter on the Complaint.
"A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable."
Similarly, paragraph 4(c) of the Policy sets out three illustrative circumstances which would demonstrate the respondent's rights or legitimate interests in the domain name for the purpose of paragraph 4(a)(ii) of the Policy.
Notwithstanding the fact that a respondent may be in default, the complainant bears the burden of proof in respect of each of the three elements of paragraph 4(a) of the Policy referred to above. Such default does not, per se, entitle the Complainant to a finding in its favor by reason thereof, as failure by the complainant to discharge the burden of proof will still result in the Complaint being denied (M Corentin Benoit Thiercelin v. CyberDeal, Inc., WIPO Case No. D2010-0941). It follows that such default does not necessarily, of itself, constitute an acceptance or an admission of any of the averments or contentions put forward, or of the supporting evidence put up (Standard Innovation Corporation v. Shopintimates USA, WIPO Case No. D2011-0049). The Panel is nevertheless not bound to accept all that has been put up by the Complainant but must evaluate it as it stands (Brooke Bollea, a.k.a. Brooke Hogan v. Robert McGowan, WIPO Case No. D2004-0383; San Lameer (Pty) Ltd and Sanlam Ltd v. Atlantic Internet Services (Pty) Ltd, WIPO Case No. D2010-0551).
However, paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a UDRP panel shall draw such inference as it considers appropriate from the failure of a party to comply with the Rules (Allianz Compañia de Seguros y Reaseguros S.A. v. John Michael, WIPO Case No. D2009-0942).
In the present instance, the Panel finds that there are no exceptional circumstances for the failure of the Respondent to submit a Response, particularly in the light of the fact that the Complainant wrote on several occasions to the Respondent, as did the Center when dealing with procedural matters and advising the Respondent of time limits, as against the Respondent's failure entirely to respond to any such correspondence.
From this, the Panel considers that it follows that it may accept that the Respondent does not deny the reasonable facts asserted and contentions made by the Complainant based on such facts (Reuters Limited v Global Net 2000, Inc, WIPO Case No. D2000-0441; LCIA (London Court of International Arbitration) v. Wellsbuck Corporation, WIPO Case No. D2005-0084; Ross-Simons, Inc. v. Domain Contact, WIPO Case No. D2003-0994; Standard Innovation Corporation v. Shopintimates USA, supra; VKR Holding A/s v Above.com Domain Privacy/Host Master, Transure Enterprise Ltd, WIPO Case No. D2012-0040).
Thus, in the view of the Panel, it may accept asserted facts that are not unreasonable, with the consequence that the Respondent will be subjected to inferences that flow naturally from the information provided by the Complainant (Reuters Limited v Global Net 2000, Inc, WIPO Case No. D2000-0441; RX America LLC v. Matthew Smith, WIPO Case No. D2005-0540; Allianz Compañia de Seguros y Reaseguros S.A. v. John Michael, supra ; Standard Innovation Corporation v. Shopintimates USA,supra; VKR Holdings A/ s v Above.com Domain Privacy/Host Master, Transure Enterprise Ltd, supra; Groupe Auchan v. Anirban Mitra, WIPO Case No. D2012-0412; Barclays Bank PLC v. Miami Investment Brokers Inc, WIPO Case No. D2012-1213).
As appears from the factual background, the Complainant has set out details of the extent to which it carries on business, and holds trademark registrations for XENICAL, in over 100 countries.
On that basis and even though it does not expressly so contend, the Panel considers that on the factual background relied upon by it, particularly as it is unchallenged by the Respondent, the Complainant has rights which fall within the provisions of Article 6bis of the Paris Convention for the Protection of Industrial Property of March 20, 1893, as revised, and as confirmed and extended by Articles 6.2 and 6.3 of the GATT Agreement on Trade-Related Aspects of Intellectual Property Rights (commonly referred to as "the TRIPS Agreement"). These treaties enable the owner of a well-known trademark to seek protection not only in respect of products which might be marketed under an offending trademark in the same class, but outside that class as well (V&S Vin & Spirit v. Young Nah, WIPO Case No. D2004-0961; Groupe Auchan v. Anirban Mitra, WIPO Case No. D2012-0412). In the present matter, the Complainant's trademarks are, in fact, in many instances, registered for several different classes.
The fact that the word mark has been incorporated entirely into the Domain Name is sufficient to establish that it is identical or confusingly similar to the Complainant's registered mark (Quixtar Investments Inc v. Dennis Hoffmann, WIPO Case No. D2000-0253; Universal City Studios, Inc. v. David Burns and Adam-12 Dot Com, WIPO Case No. D2001-0784; Lilly ICOS LLC v. John Hopkin/ Neo net Ltd., WIPO Case No. D2005-0694; SOCIÉTÉ DES PRODUITS NESTLÉ SA v. Mustafa Yakin/Moniker Privacy Services, WIPO Case No. D2008-0016).
The addition of the word "buy" to the mark XENICAL and suffix "120mgs" in the Domain Name does not to the Panel distinguish it from the Complainant's trademark. (Experian Information Solutions Inc v. BPB Prumerica Travel (a/k/a SFXB a/k/a H Bousquet a/k/a Brian Evans), WIPO Case No. D2002-0367). If anything, the dominant portion of the Domain Name is XENICAL. This also reinforces the similarity and the fact of confusion (Intuit Inc v. Nett Corp, WIPO Case No. D2005-1206; BID INDUSTRIAL HOLDINGS V. CRAIG SMITH, WIPO Case No. D2009-1627).
Moreover, the addition of the top level domain is not generally an element which provides distinctiveness that can be taken into consideration when evaluating the identity and similarity of the Complainant's trademark and the Domain Name (Magnum Piering Inc v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429; Phenomedia AG v. Meta Verzeichnis Com, WIPO Case No. D2001-0374; Qantas Airways Limited v. Minh Huynh, WIPO Case No. D2008-1382; The South African Football Association (SAFA) v. Fairfield Tours (Pty) Ltd, WIPO Case No. D2009- 0998). In these circumstances, the Panel has no difficulty in concluding that the Complainant has established the first element in terms of paragraph 4(a)(i) of the Policy.
(iii) the Respondent is making a legitimate non-commercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert customers or to target the trademark or service mark at issue.
Although paragraph 4(a)(ii) requires the Complainant to prove that the Respondent has no rights to or legitimate interests in the Domain Name, once the Complainant establishes a prima facie case that the Respondent has no rights or legitimate interests in the Domain Name, the burden of production of evidence on this factor shifts to the Respondent to rebut the showing, despite the overall burden of proof remaining upon the Complainant to prove each of the three elements of paragraph 4(a) of the Policy. (Document Technologies, Inc. v. International Electronic Communications Inc, WIPO Case No. D2000-0270; University City Studios Inc, supra).
The Complainant contends that it has exclusive rights in the mark XENICAL and that the Respondent has no licence, permission, authorization or consent to use “Xenical” in its Domain Name. It follows, therefore, that the Respondent has no right to the use of that mark as part of the Domain Name and that any unauthorized use for commercial purposes would violate the exclusive trademark rights enjoyed by the Complainant. (Caesar's World Inc & Park Place Entertain Corporation v. Japan Nippon, WIPO Case No. D2003-0615; AT&T Corp v. Roman Abreu d/b/a Smartalk Wireless WIPO Case No. D2002-0605; America Online Inc v. Xianfeng Fu, WIPO Case No. D2000-1374; Sybase Inc v. Analytical Systems, WIPO Case No. D2004-0360; San Lameer (Pty) Ltd and Sanlam Ltd v. Atlantic Internet Services (Pty) Ltd, supra).
Apart from there being no authorization on the part of the Complainant, the Panel is, in the absence of challenge by the Respondent, entitled to draw the inference that there is no relationship or association between the Complainant and the Respondent, whether by licence or otherwise. The inference is warranted by reason of the Complaint that the Respondent is misleading consumers by suggesting such a link with its website. This also militates against the Respondent having rights or legitimate interests in or other entitlement which might fall within that purview (Sybase Inc v. Analytical Systems, supra).
In view of the facts and circumstances put up on the ground and which are unchallenged, the Panel is of the view that the Complainant should therefore succeed on this ground as well.
The Panel is therefore satisfied that, in the circumstances, the Complainant has established the second element of the Policy.
(iv) by using the domain name, you have intentionally attempted to attract, for commercial again, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation or endorsement of your website or location or of a produce or service on your website or location."
Whilst bad faith can exist where a domain name contains in its entirety a complainant's trademark, the Panel does not see why this principle cannot also apply where a domain name contains the dominant feature of the trademark of the Complainant and where the whole trademark has been so incorporated.
Moreover, with particular regard to paragraph 4(b)(iv) of the Policy quoted above, the Respondent suggests in its website that it either has a relationship with the Complainant or does so with the approval or endorsement of it. (Standard Innovation Corporation v Shopintimates USA,supra).
It is also not without significance that Annex 5 to the Complaint, depicting what can be seen on the Respondent's website, contains a detailed description of the medication Xenical under a main heading "BUY XENICAL WITHOUT PRESCRIPTION IN THE UK" followed immediately by a sub-heading "WHAT IS XENICAL?"
This, in the view of the Panel, puts the matter beyond doubt that the Respondent is clearly inviting would-be customers to acquire the medication XENICAL from it.
The implication arising from the website, in the mind of a would-be customer, is therefore clearly that the website is either of or in some way associated with the Complainant, which in turn, in the view of the Panel, leads to the inescapable conclusion that such potential customer is invited to do business with either the Complainant itself or someone authorized on its behalf in relation to its goods. That would, by application of paragraph 4(b)(iv) of the Policy, constitute bad faith registration and use. (Media 24 Limited v. Llewellyn Du Randt, WIPO Case No. D2009-0699; San Lameer (Pty) Ltd and Sanlam Ltd v. Atlantic Internet Services (Pty) Ltd, supra). In this instance, further proof of bad faith is the use of the Domain Name as a forwarding address to a for-profit on-line pharmacy (Pfizer Inc v. jg a/k/a Josh Green, WIPO Case No. D2004-0784).
Moreover, by use of the Complainant's trademark as incorporated in the Domain Name, the Respondent is trading on the value established by the Complainant in its marks, to attract Internet users and thereby deriving economic benefit from either those users attracted to the Respondent's website or by receiving compensation from others, if these would-be customers are routed elsewhere. Such a practice would also constitute bad faith registration and use. (Yahoo! Inc and GeoCities v. Data Art Corp, DataArt Enterprises Inc., Stonybrook Investments, Global Net 2000 Inc., Powerclick Inc. and Yahoo Search, Inc., WIPO Case No. D2000-0587).
The selection of a domain name that is confusingly similar to the Complainants’ trademark and the Complainant's domain names, particularly in the absence of any explanation, leads to the conclusion, in the view of the Panel, that the Respondent must have known of the reputation of the Complainant in the market and therefore it selected the Domain Name in circumstances where it was very well aware of the Complainant's reputation and intended to benefit therefrom. (Deutsche Post AG v. MailMij LLC, WIPO Case No. D2003-0128).
For the foregoing reasons, in accordance with paragraph 4(a) of the Policy and paragraph 15 of the Rules, the Panel orders that the Domain Name <buyxenical120mg.com> be transferred to the Complainant.

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F. Hastings Griffin, Jr. (Argued), E. David Chanin, Dechert Price & Rhoads, Philadelphia, Pa., Steven S. Bell, Barry J. Reingold and Perkins Coie, Seattle, Wash., for appellant.
Mark Alan Corchin, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Philadelphia, Pa., for appellee Ursula J. Schoenborn, et al.
Philip Silverman, Juanita M. Maadole, Speiser, Krause & Madole, Washington, D.C., for appellee Birgit Brock, et al.
James J. McCarthy (Argued), Magana, Cathcart, McCarthy & Pierry, Los Angeles, Cal., Joseph H. Reiter, Stassen, Kostos & Mason, Philadelphia, Pa., for appellee.
Before HUNTER and GARTH, Circuit Judges, and GERRY, District Judge* .
This appeal requires us once again to explore the parameters of the government contractor defense in product liability actions involving an alleged design defect. See Koutsoubos v. Boeing Vertol, 755 F.2d 352 (3d Cir. 1985); Brown v. Caterpillar Tractor Co., 741 F.2d 656 (3d Cir. 1984).
Plaintiffs in this action are the survivors and personal representatives of servicemen who died in the crash of a Boeing-Vertol helicopter near Mannheim, West Germany, on September 11, 1982. In answering special interrogatories, a jury found Boeing liable to the plaintiffs. Because we find that the government contractor defense applies to this claim and that the district court erred in submitting the case to the jury, we reverse and remand the case for entry of judgment notwithstanding the verdict in favor of Boeing-Vertol.
On September 11, 1982, a helicopter crashed near Mannheim, West Germany. The helicopter, a U.S. Army CH-47C "Chinook" (No. 22292), was manufactured and assembled in Pennsylvania by Boeing-Vertol, a division of Boeing. As a result of the accident, all forty-six crew members and passengers on board were killed.
On the date that the accident occurred. Helicopter 22292 was carrying a number of British, French, and German parachutists who planned to jump when the helicopter reached an altitude of 12,000 feet. At approximately 10,500 feet, the helicopter began to descend and notified ground control that it was returning for landing. The helicopter's pilot stated that he had heard a noise from the rear of the craft and that a flicker had been observed on the master caution panel. At between 800 and 1,000 feet, pieces of the helicopter then began to fall, including the aft (rear) rotor blades, followed by the aft transmission. The helicopter then turned 180 degrees, lost airspeed and fell vertically. It exploded and burned on impact.
An understanding of the mechanics of the helicopter transmission is essential to an understanding of the issues raised in this case. Helicopter 22292 was a tandem-rotor helicopter on which the paths of the forward and aft rotor blades intersected. To ensure proper flight, all components of the drive system that transmitted power to the forward and aft rotor blades had to be synchronized.
Power from engines in the rear of the aircraft was transmitted to the forward and aft transmissions through a drive train consisting of aluminum shafts linked to each other by flexible couplings suspended within a protective tunnel along the top of the helicopter airframe. These shafts, which linked together, formed the synchronizing or "sync" shaft which rotated at a constant speed. The design clearance between the sync shaft and the tunnel floor was 0.5 inches, plus or minus normal manufacturing tolerances. This clearance was uniform throughout the tunnel, including at Station 120, the point at which the sync shaft fractured due to contact and friction.
The forward-most section of the sync shaft was connected to the pinion shaft. The pinion shaft, a thick steel cylinder with a gear on the forward end, meshed with the main transmission gears that drive the forward rotor blades. The pinion shaft was held in place within the transmission by three sets of steel bearings which, in normal operation, permitted the pinion to move no more than .0081 of a degree from dead center. The pinion bearings required adequate lubrication to function properly.
Post-accident investigation suggested the following sequence of events: (1) the pinion assembly of the forward transmission failed due to insufficient lubrication because of clogged oil jets; (2) the forward synchronizing driveshaft was severed by contact with an airframe bulkhead; and (3) the forward rotor blades struck and severed the aft rotor blades.
Helicopter 22292 was built by Boeing under a 1974 government contract. Helicopters of the Chinook type were first developed by Boeing and the Army in the 1960's. Boeing developed the CH-47 design in response to Army mission and performance requirements. The Army approved the design, inspected prototypes, implemented design changes, then approved the design for production in the early 1960s. In 1966, two prior accidents involving Chinook helicopters (Nos. B-67 and B-75) were investigated by both the Army and Boeing. In each instance, Boeing concluded that lubrication starvation caused bearing failures which, in turn, caused the pinion shaft to be displaced. This displacement resulted in the ultimate failure of the synchronizing shaft. As a consequence of these investigations, Boeing suggested multiple design changes in the forward transmission system.1 The Army approved certain changes, but rejected a proposed change which would have provided a separate oil line leading to the pinion bearings and equipped with a fine mesh screen to filter out particles (Engineering Change Proposal (ECP) 422) (see note 1C below).
As a result of the Mannheim crash, numerous actions were brought against Boeing by foreign and American personal representatives and next-of-kin.2 The asserted theories of liability included breach of warranty, negligence, and strict liability under section 402A of the Restatement (Second) of Torts. By order of October 25, 1983, the District Court for the Eastern District of Pennsylvania consolidated all cases for purposes of trial on the issue of liability. In Re Air Crash Disaster at Mannheim, Germany, 575 F. Supp. 521 (E.D. Pa. 1983). The court further decided that Pennsylvania law would control all issues of liability in all cases and that, with respect to the foreign plaintiffs' damage claims, Pennsylvania law would also govern. 575 F. Supp. at 527.
Trial was bifurcated with the issues of liability and damages to be tried separately. A jury trial was held on the issue of liability. Plaintiffs called several experts to testify about helicopter design and specifically about the aspects of the CH-47C design that contributed to the crash. Much of this testimony focussed on the rupture of the sync shaft at station 120, a rupture which, by agreement of all of the experts, occurred after the failure of the forward transmission had permitted displacement of the pinion gear. This displacement in turn allowed the sync shaft to rub against the aircraft's structure, weakening the sync shaft and, according to plaintiff's experts, causing the shaft's rupture when power was applied to the transmission. Plaintiff's expert, Angelo A. Coronato testified to four specific defects in the transmission design.3 Three of these defects related to the transmission itself, while one defect focussed on the construction of the sync shaft.
Plaintiffs also presented some evidence that Boeing was aware that the sync shaft had failed due to rubbing at station 120 in the prior crashes of the CH-47C design. Plaintiffs charged that Boeing failed to inform the Army of its conclusions that sync shaft failure was implicated in the crash or suggest any modification of the sync shaft design.
1. Was the defendant Boeing-Vertol negligent?
2. Was the negligence of Boeing-Vertol a proximate cause of the accident?
3. Was the Government's maintenance a superseding cause of the accident?
4. Did the defendant Boeing-Vertol have final control of the design of the aircraft?
5. Was the aircraft when delivered by defendant to the Army defective?
6. Was the defect a proximate cause of the accident?
The jury, answered each interrogatory in favor of the plaintiffs. Questions 1, 2, 4, 5, and 6 were answered "yes", question 3 was answered "no". The jury was not given an interrogatory which required an answer as to whether the Army had approved the specifications.
The district court denied Boeing's motion for judgment notwithstanding the verdict and for a new trial, specifically holding that the government contractor defense was inapplicable since Boeing initially developed the helicopter design based on the Army's designation of performance specifications, despite the fact that the Army subsequently approved those specifications. 586 F. Supp. 711.
[T]he issue in a design defect case is whether the design of the product is or is not that called for by the specification.
the specifications are skeletal, the contract is negotiated, and the contractor, knowing of a high risk of serious harm, fails to install a relatively inexpensive safety device.
696 F.2d 254 n. 17.
The Brown cases did not address the issue, however, of the amount of contractor participation in the design permissible before the government contractor defense is lost. This court spoke to that issue as a question of federal law in Koutsoubos v. Boeing Vertol, 755 F.2d 352 (3d Cir. 1985). In Koutsoubos, a Navy crewman was killed when a Boeing-Vertol helicopter flipped over in the water. The crewman's administrator sued under admiralty jurisdiction. We affirmed the district court's grant of partial summary judgment in favor of Boeing on the government contractor defense despite affidavits that Boeing had originated many of the specifications for the helicopter.
In Koutsoubos, we recognized that in tort actions against military contractors, the government contractor defense derives from the doctrine of federal immunity established by Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), and Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977). We also recognized the holding of the Feres and Stencel cases--that the Federal Torts Claim Act does not waive the government's sovereign immunity against actions by military personnel for service-related injuries--would be subverted if military contractors could be held liable to military personnel, since the contractors could pass the cost of that liability along to the government. Koutsoubos, 755 F.2d at 354.
[H]olding military contractors liable [for design defects] would "thrust the judiciary into the making of military decisions. Although judges must decide cases arising from fields of endeavor of which they know little, their otherwise omnicompetence confronts its limits in military matters. At this point, it must be acknowledged, separation of powers becomes a proper concern."
Id. at 354 (quoting McKay v. Rockwell International Corp., 704 F.2d 444, 449 (9th Cir. 1983)). See also Stencel, 431 U.S. at 673, 97 S. Ct. at 2059 (trial of serviceman's personal injury action against United States and military contractor would necessitate judicial second-guessing [of] military orders. This factor ... weighs against permitting any recovery....").
The separation of powers principle that bars judicial second-guessing of military judgments applies, regardless of the status of the plaintiffs, wherever recovery is sought for an alleged defect in a product designed for military use, as the Chinook helicopter in this case indisputably was. Clearly, however, where recovery is sought against a military contractor, no separation of powers concern arises unless the design in question represents a judgment by the military. Hence, government establishment or approval of the specifications in question is a significant element of the military contractor defense. Koutsoubos, 755 F.2d at 355.
In Koutsoubos, therefore, we adopted the three part test for the government contract defense in military equipment cases developed by Judge Pratt in In re "Agent Orange" Product Liability Litigation, 534 F. Supp. 1046 (E.D.N.Y. 1982). This test requires for a valid defense that: 1) the government establish the specifications for the product; 2) that the manufacturer complied with these specifications; and 3) that the government knew as much as or more than the contractor about the hazards of the product as designed. 534 F. Supp. at 1055. The threshold issue here, as with the helicopter design in Koutsoubos, is whether the Army "established" the specifications for the CH-47C even though Boeing participated in the design of the aircraft.
In Koutsoubos, we decided that government approval of specifications developed through a continuous series of negotiations between the contractor and the military satisfied the first prong of the Agent Orange defense, even though the majority of specifications originated with the contractor. We thus accepted the Ninth Circuit's conclusion in McKay v. Rockwell International Corp., 704 F.2d 444 (9th Cir. 1983), cert. denied, --- U.S. ----, 104 S. Ct. 711, 79 L. Ed. 2d 175 (1984), that a military contractor, confronted with section 402A liability, might meet the first element of the defense where the government reviewed and approved a detailed set of specifications.9 Thus, under Koutsoubos, the government contractor defense is available to a contractor that participates in the design of the product, so long as the government's approval consists of more than a mere rubber stamp. The defense is available so long as there is true government participation in the design.
Both McKay and Koutsoubos, however, were decided under federal law as cases within the admiralty jurisdiction. That the instant case involves Pennsylvania law does not alter the underlying rationales for recognizing the sufficiency of government approval. Adoption of the Agent Orange criteria, as interpreted by McKay and Koutsoubos, does not conflict with the government contractor defense as it currently exists under Pennsylvania law.
In Koutsoubos, as we have previously observed, we recognized several public policy justifications for the Agent Orange formulation of the government contractor defense in military product cases, including 1) the preservation of governmental immunity under Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950); 2) the inability of the judiciary to review military decisions; 3) the bargaining position of contractors; and, 4) encouraging participation by contractors in product design. The first of these justifications was recognized by the Pennsylvania Supreme Court in Valley Forge Gardens, Inc. v. James D. Morrissey, Inc., 385 Pa. 477, 483-84, 123 A.2d 888, 891 (1956). In Brown I, we predicted that Pennsylvania was likely to adopt the other justifications for the defense. 696 F.2d at 250-51 n. 9, 252 n. 12. Further, the third prong of the Agent Orange test, requiring equal or greater knowledge of hazards by the government, encourages contractors to warn the government of known hazards of the product, and limits the availability of the defense where the contractor fails to warn the government.
We thus hold that under Pennsylvania law, the government contractor defense is available despite the contractor's participation in development of the design, so long as the government has approved the design after a substantial review of the specifications.
Having established the parameters of the government contractor defense, we now must determine whether this issue was appropriately submitted to the jury on the evidence presented at trial. Our review of the denial of entry of judgment notwithstanding the verdict is highly circumscribed; we may direct entry of judgment notwithstanding the verdict only where, upon review of all of the evidence and drawing all inferences in favor of the verdict winner, judgment for the verdict loser is demanded as a matter of law. See Neville Chemical Company v. Union Carbide Corporation, 422 F.2d 1205, 1211-12 (3d Cir.), cert. denied, 400 U.S. 826, 91 S. Ct. 51, 27 L. Ed. 2d 55 (1970). In our review of the record, we have determined that this is a case in which a grant of judgment n.o.v. is required.
Of the three elements of the government contractor defense, only the first, requiring government approval of the specifications, and the third, requiring government knowledge of the product's hazards, are here in issue. Plaintiffs do not claim that the second element, compliance with specifications, is not met.
b. The official base line configuration is that configuration established by the delivery of CH-47 type Aircraft Serial Number 64-13107 (B-79) as modified by the minutes of the First Article Configuration Inspection of 14 and 15 January 1965, and as further modified by all Engineering Changes approved by the Government. For the purpose of this contract the configuration of the aircraft to be delivered hereunder is defined in Section "E", Item Number 0001, of this contract and as modified by approved Engineering Change Proposals.
c. The aforementioned configuration base line shall not be revised until an Engineering Change Proposal has been submitted by the Contractor and approved by the Government.
The other element of the defense disputed by the parties has to do with the doctrine's requirement that the government have a knowledge of the product's hazards equal to, or greater than, the knowledge of the contractor. Here again, the evidence is undisputed that the Army was aware of two 1966 crashes of CH-47 helicopters resulting from forward transmission failure. Despite this knowledge the Army refused to implement a Boeing proposed modification of the transmission lubrication system which Boeing proposed in order to prevent bearing failures.
when the pinion bends two degrees, the synch shaft rubs hard on structure. This rub (hard) precipitates the immediate and ultimate failure.
Plaintiffs claim that there is no evidence that the Army had knowledge of this memorandum or its analysis of the consequences of transmission failure.
We are satisfied that the issue of the Army's knowledge of the sync shaft's tendency to fail as a result of transmission failure is irrelevant to the government contractor defense in this case. It is undisputed that the Army had knowledge that the forward transmissions in use on the CH-47C had a dangerous propensity towards bearing failure, yet the Army adhered to the original design specifications. The expert testimony presented by plaintiffs bore out the fact that the rubbing of the synchronization shaft would occur only after a "massive" failure of the transmission bearing (testimony of Joseph C. Paschal, appendix at 904). It is clear from the uncontradicted testimony concerning prior CH-47 accidents which resulted from faulty transmissions, that the Army knew that the forward transmission was hazardous and that failure of the transmission would precipitate the crash of the helicopter. Yet, it is undisputed that prior to the execution of the 1974 contract under which helicopter 22292 was built, the Army had rejected proposed design modifications aimed at preventing such a transmission failure.
We conclude that the relevant knowledge which the Army must possess in order to satisfy the third prong of the Koutsoubos test is knowledge of a defect in an essential or key component of the mechanism (here, a helicopter transmission system): a defect which if uncorrected may result in the disabling of the aircraft. In this case, the record, as we have previously stated, is clear that the Army knew of the transmission's tendency to fail without warning due to lubrication starvation resulting from failure to screen the oil line. Indeed, as we have discussed earlier, for reasons not disclosed, the Army had specifically rejected the very modification proposed by Boeing which would have corrected this condition.
Moreover, it is undisputed that the sync shaft could fail only after transmission failure, and the record unqualifiedly discloses that the Army had as much knowledge of the transmission problems as did Boeing.
The plaintiffs' argument centered on the two main issues we have discussed. The plaintiffs contended that the Army approval of the helicopter specifications was insufficient to invoke the government contractor defense and that the Army did not know of the defect which caused the helicopter crash. We have addressed both issues in terms of the government contractor defense, and because it is undisputed that the Army approved the contract and knew of the transmission defect, it is apparent that the government contractor defense shielded Boeing. Because the record which we have reviewed on this appeal not only establishes the Army's knowledge of the transmission defect, but also establishes that the specifications for the CH-47C Chinook represent a military judgment and were approved by the Army, no disputed issue of fact remained for jury consideration. This being so, the district court should have rendered judgment for Boeing as a matter of law.
Since Boeing-Vertol has established all the elements of the government contractor defense by undisputed evidence, we reverse and direct the district court to enter judgment n.o.v. in favor of Boeing-Vertol. Given this disposition, we need not reach Boeing's other claims of error by the district court.
Accordingly, the order of the district court dated May 14, 1984 will be reversed, with the direction that the district court enter judgment in favor of Boeing-Vertol.
The petition for rehearing filed by appellants, Ursula J. Schoenborn, as Executrix of the Estate of Leon Edward Schoenborn, deceased, in the above-entitled case having been submitted to the judges who participated in the decision of this court, and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
GIBBONS, Circuit Judge, would grant the petition for rehearing.
A. Place indicating buttons on forward and aft filters. Engineering Change Proposals (ECP) 418, 419.
B. Install redundant oil jets--three at each bearing. ECP 420, 421.
C. Install a screen in the lubrication line before oil reaches jets. ECP 422.
D. Improve oil drainage at pinion bearings. ECP 442.
E. Incorporate improved chip detector (to detect metal flakes in lubricant which result from metal breakdown). ECP 153.
F. Incorporate lock nut positive retention at overhaul. ECP 296, 295, 297.
G. Provide close tolerance nuts for high speed drive shaft applications. ECP 505.
To summarize, we hold that under the Feres-Stencel doctrine and the government contractor rule, a supplier of military equipment is not subject to section 402A liability for a design defect where: (1) the United States is immune from liability under Feres and Stencel; (2) the supplier proves that the United States established, or approved, reasonably precise specifications for the allegedly defective military equipment; (3) the equipment conformed to those specifications; and, (4) the supplier warned the United States about patent errors in the government's specifications or about dangers involved in the use of the equipment that were known to the supplier but not to the United States.
904 F.2d at 451. The McKay court concluded that the record before it did not permit any determination whether the United States "set or approved reasonably-detailed specifications" for the products at issue. Id. at 453. The case was therefore remanded.
All specifications, exhibits, tables and drawings which are referenced in this contract but are not attached hereto are hereby incorporated herein by reference.

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CITATION: City of Toronto et al v.
councillors from 47 to 25 - as the Impugned Provisions.
average of 61,000 to 111,000.
47-ward election were well underway.
Toronto's governance structure in the middle of the City's election.
constitutional principles of the rule of law and democracy.
the appointment of the four regional chairs.
can prevail on the facts herein. However, I make no actual finding in this regard. The ss.
Provisions infringe s. 2(b) of the Charter.
Babcock v Canada (Attorney General),  3 S.C.R. 3, at para. 57.
Reference re Canada Assistance Plan (B.C.),  2 S.C.R. 525, at para. 85.
Sullivan, Sullivan on the Construction of Statutes, (6th ed.) at para 11.64.
of the same Agreement provides that a failure to abide by any of its terms does not give rise to any legal remedy.
was set out in the previous law.
can result in effective representation.
Impugned Provisions are of no force or effect.
of the administrative actions of agencies and tribunals – not at the level of primary legislation such as Bill 5 herein.
 2 S.C.R. 504 at paras 44, 68-69; and Reference re Canada Assistance Plan, supra, note 4, at paras 58-61.
Libman v Quebec (Attorney General),  3 S.C.R. 569, at para. 28.
Bill 5. However, for ease of understanding, I will focus only on the candidates.
R. v. Keegstra,  3 S.C.R. 697 at 763-64.
Libman, supra, note 10, at para. 29.
para. 26; Taman v Canada (Attorney General), 2015 FC 1155 at para 41.
Irwin Toy Ltd. V. Quebec (Attorney General),  1 S.C.R. 927 at 978.
ward when the ward numbers and sizes were suddenly changed.
if this were to happen.
confusing state of affairs with potential voters than discussing relevant political issues.
others dropped out of the race entirely.
The case law is clear that the Charter cannot be subdivided into two kinds of guarantees - freedoms and rights.
The freedom to do a thing, when guaranteed by the Constitution and interpreted purposively, implies a right to do it.
message to the relevant voters.
right to say that s. 2(b) of the Charter does not guarantee a 47-ward election platform.
election, candidates were not given a reasonable opportunity to present their positions.
Figueroa v. Canada (Attorney General), 2003 SCC 37, at para. 50.
Ibid at para 47; Figueroa, supra, note 18, at para 51.
 I now turn to the municipal voter’s right under the same provision of the Charter.
to vote is, in essence, the right to “effective representation” and not just voter parity.
S.C.R. 815 and Fraser, supra, note 17, at paras 46 and 69-70.
Reference re Provincial Electoral Boundaries (Sask.),  2 S.C.R. 158 at para. 1.
Haig v. Canada (Chief Electoral Officer),  2 S.C.R. 995, at para. 104.
Saskatchewan Reference, supra, note 23, at para. 49.
s. 2(b) of the Charter?
 In my view it can, for the following reasons.
then the right so provided must be consistent with and not in breach of the Constitution.
a vote that can result in effective representation.
Ibid at para. 25. Also see Baier, supra, note 28, at para. 57.
City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, s. 135(2) and Municipal Elections Act, 1996, S.O. 1996, c.
Haig, supra, note 24, at para. 84.
vote in a municipal must comply with the Charter, and in particular s. 2(b).
proceeded to consider the s. 2(b) argument. The Court of Appeal found no breach of s.
course, to the findings and conclusions of the Toronto Ward Boundary Review.
East York, supra, note 5.
East York, supra, note 5. at paras. 4 and 8.
neighbourhood zoning issues, building permits and speed bumps.
of one's government representative.”43 This right must obviously be a meaningful right.
denied by the Divisional Court: Natale v City of Toronto, 2018 ONSC 1475.
The average ward size in other Ontario cities is 32,600.
sizes of approximately 110,000 do not.
vote in a municipal election, that right must comply with the Charter.
justified or “saved” under s. 1 of the Charter.
R. v. Oakes,  1 S.C.R. 103.
Bill 5 was debated in the legislature.
Libman, supra, note 10, at para. 38.
size and cost of municipal government.
Health Services and Support Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27.
urgency that required Bill 5 to take effect in the middle of the City’s election.
Figueroa, supra, note 18, at para. 72.
RJR-MacDonald Inc. v Canada (Attorney General),  3 S.C.R. 199.
society and cannot be saved as reasonable limits under s. 1.
Is it too late to return to the 47-ward structure?
guaranteed under s. 2(b) of the Charter of Rights.
000 substantially interfered with the municipal voter’s freedom of expression under s.
reasonable limits under s. 1 of the Charter of Rights.
number of wards from 47 to 25 are granted.
 The Impugned Provisions have no force and effect and are set aside immediately.
constitutionally valid provincial law says otherwise - the City has 47 wards.
regard to TDSB school board elections and recently enacted provincial regulations.
Province within 21 days thereafter.
 I am very much obliged to all counsel for their co-operation and assistance.

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