WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Bayer AG v. Okan Erdemir Case No. D2010-0288 1. The Parties
The Complainant is Bayer AG of Leverkusen, Germany, represented by Bettinger Schneider Schramm Patent- und Rechtsanwälte, Germany.
The Respondent is Okan Erdemir of Istanbul, Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 24, 2010. On February 24, 2010, the Center transmitted by email to February 25, 2010 a request for registrar verification in connection with the disputed domain name. On February 25, 2010, GoD, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 2, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 22, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 31, 2010.
The Center appointed Dilek Ustun as the sole panelist in this matter on April 16, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is a global enterprise with core competencies in the fields of health care, nutrition and high-tech materials.
The company name BAYER dates back to 1863. The Complainant is the owner of over 1000 trademark and service mark registrations and pending applications for registration of the BAYER trademark worldwide, including registrations in Turkey, where the Respondent is located. Those registrations cover an extensive range of goods and services, including: pharmaceutical preparations, chemicals, waste water treatment chemicals for industrial use, pigments, synthetic and artificial resins, coatings, plastics, greases, lubricants, rubber, synthetic rubber and rubber chemicals for use in the automotive, tire, adhesives, fibers, yarns, threads, agricultural chemicals, pesticides, insecticides, fungicides, herbicides and cleaning materials industry.
The Complainant and its subsidiaries also own hundreds of domain name registrations containing the mark BAYER, having a strong presence on Internet.
The Respondent registered the disputed domain name on February 28, 2009. 5. Parties' Contentions A. Complainant
The Complainant makes the following contentions.
(i) The disputed domain name is confusingly similar to the Complainant's mark BAYER as it incorporates this mark in its entirety. The addition of the word “medikal” does not eliminate the similarity between the Complainant's trademark and the disputed domain name. The fact that the word “medikal” (the Turkish word for “medical”) is added to the Complainant's BAYER marks does not eliminate the similarity between the Complainant's BAYER Marks and the disputed domain name, as “medikal” is the descriptive component of the disputed domain name which merely describes one of the Complainant's fields of business.
(ii) The Respondent has no rights or legitimate interests in respect of the domain name. The Complainant has not licensed or permitted the Respondent to use any of its trademarks. The domain name is not used in connection with a bona fide offering of goods or services. The Respondent uses the domain name in connection with a website offering third parties ‘products, including weight loss products and creams and unguents for different medical indications. There is no evidence, which suggests that the Respondent trades under the domain name or the name BAYERMEDIKAL, or is commonly known by said domain name or the name BAYERMEDIKAL, or is making a legitimate non-commercial or fair use of the domain name.
(iii) The Respondent has registered and is using the domain name in bad faith. The Respondent does not conduct any legitimate business activity and was aware of Complainant's rights in the trademark BAYER.
The nature of the Respondent's website makes it clear that its purpose is, by creating a likelihood of confusion with the Complainant's trademark, to divert traffic intended for the Complainant's website to its own, with the intent to earn revenues from the diverted traffic.
Respondent's use of the disputed domain name attempts to attract for commercial gain Internet users to the Respondent website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or location or of a product or service on the Respondent website.
The fact that the Respondent has registered a well-known trademark which is obviously connected with the Complainant's products also supports the finding of bad faith as the very use of well-known trademark by someone with no connection with the product suggests opportunistic bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules requires the Panel to decide a Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing:
(i) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used by the Respondent in bad faith. A. Identical or Confusingly Similar
The company name BAYER dates back to 1863. The Complainant is the owner of over 1000 trademark and service mark registrations and pending applications for registration of the BAYER trademark worldwide, including registrations in Turkey, where the Respondent is located.
The addition of the word “medikal” does not eliminate the similarity between the Complainant's trademark and the disputed domain name.
The Panel concurs with the opinion of several prior UDRP panels which have held that, when a domain name wholly incorporates a complainant's registered mark that may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g., Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle, WIPO Case No. D2005-1105; Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Eauto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc.,WIPO Case No. D2000-0047; Bayerische Motoren Werke AG v. ,WIPO Case No. D2002-0615.
Finally, the Respondent has brought no argument in support of his contention that the disputed domain name is not identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests
The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interests in the disputed domain name. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by its using the disputed domain name. Nor has the Respondent shown that it has been commonly known by the disputed domain name. The Complainant showed that the Respondent has neither a license nor any other permission to use the disputed domain name. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks right or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests. The Panel finds that given the use made of the disputed domain name, when the Respondent registered the disputed domain name it knew that BAYER was the trademark of the Complainant. It registered the disputed domain name because it would be recognized as such.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a list of indicative circumstances that suggest bad faith registration, however, such list is not exhaustive and a finding of bad faith depends on the circumstances of each case.
Based on the circumstances, in the Panel's view, it is reasonable to infer that when the Respondent registered the disputed domain name, he knew that the name was the trademark of the Complainant. The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that this knowledge may be considered as both a precondition and in appropriate cases also an indication of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226).
The nature of the Respondent's website makes it clear that its purpose is, by creating a likelihood of confusion with the Complainant's trademark, to divert traffic intended for the Complainant's website to its own, with the intent to earn revenues from the diverted traffic.
Thus it is obvious to this Panel that by using the disputed domain name, the Respondent intentionally attempts to attract for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website. In view of the above, the Panel finds that the Respondent has registered and used the disputed domain name in bad faith, in accordance with paragraph 4(a)(iii) of the Policy. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Dilek Ustun
Sole Panelist
Dated: April 30, 2010
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