Complainant is Bayer AG of Leverkusen, Germany, represented by BPM Legal, Germany.
Respondent is Privacy Protection Service INC d/b/a PrivacyP. of Nobby Beach, Australia / Domain Admin, Private Registrations Aktien Gesellschaft of Kingstown, Saint Vincent and the Grenadines. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with PDR Ltd. d/b/a PublicDomainR (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 22, 2015. On October 22, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 23, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on October 26, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on October 28, 2015.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 29, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 18, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on November 19, 2015.
The Center appointed Dinant T. L. Oosterbaan as the sole panelist in this matter on November 23, 2015. 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
Complainant Bayer is a company incorporated in Germany. Complainant is a global chemical and pharmaceutical supplier in the fields of health care, nutrition and plant protection. It operates worldwide and is represented by over 250 affiliates, including in Australia.
According to the evidence submitted by Complainant, Complainant has a large number of trademark registrations for BAYER, including the Australian trademark BAYER with registration number 206377 and a registration date of November 24, 1966. In addition Complainant operates multiple websites containing the BAYER mark.
The Domain Name was first registered on November 20, 2001.
The trademark registrations of Complainant were issued prior to the registration of the Domain Name. 5. Parties' Contentions A. Complainant
Complainant submits that the Domain Name is confusingly similar to its BAYER trademarks as it contains the well-known BAYER trademark in its entirety. The addition of the generic word "chemicals" is not sufficient to distinguish the Domain Name from the BAYER trademark.
According to Complainant, Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent is not commonly known by the Domain Name and has not acquired any trademark or service mark rights in the Domain Name. According to Complainant, Respondent is using the Domain Name to direct Internet users to a pay-per-click website with links not only to products of Complainant but also to different categories which contain links to products of competitors of Complainant. According to Complainant, Respondent has failed to create a bona fide offering of goods or services and is not making a legitimate noncommercial or fair use of the Domain Name.
Complainant submits that Respondent has registered and is using the Domain Name in bad faith, in particular as Respondent is using the Domain Name in order to redirect Internet users to a pay-per-click site that provides links to websites of third parties. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to "decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable".
Paragraph 4(a) of the Policy requires that the complainant proves each of the following three elements to obtain an order that the disputed domain name should be transferred or cancelled:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel will proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied in this proceeding. A. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy, the complainant must first of all establish rights in a trademark or service mark and secondly that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights.
Complainant has established that it is the owner of numerous trademark registrations for BAYER including in Australia where Respondent is located. The Domain Name incorporates the entirety of the widely-known BAYER trademark as its distinctive element. Many UDRP decisions have found that a disputed domain name is confusingly similar to a complainant's trademark where the disputed domain name incorporates the complainant's trademark in its entirety. The addition of the common, descriptive and non-distinctive element "chemicals" is insufficient to avoid a finding of confusing similarity in particular as Complainant is a chemical company.
The Panel finds that Complainant has proven that the Domain Name is confusingly similar to Complainant's trademark. B. Rights or Legitimate Interests
In the opinion of the Panel, Complainant has made a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name. Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks or to register the Domain Name incorporating its marks. Respondent is not making a legitimate noncommercial or fair use of the Domain Name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks of Complainant. Based on the evidence provided by Complainant, the Domain Name resolves to a pay-per-click parking website which contains links not only to products of Complainant but also to different categories which contain links to products of competitors of Complainant. Such use cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name. In addition, the website does not accurately and prominently disclose the relationship between Respondent and Complainant as the holder of the well-known BAYER trademarks, in particular as there has never been any business relationship between Complainant and Respondent. Respondent is also not commonly known by the Domain Name nor has it acquired any trademark rights.
No Response to the Complaint was filed and Respondent has not rebutted Complainant's prima facie case.
Under these circumstances, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
The Panel finds that the Domain Name has been registered and is being used in bad faith. Noting the widely-known status of the BAYER marks and the overall circumstances of this case, the Panel finds it more likely than not that Respondent knew or should have known that the Domain Name included Complainant's widely-known BAYER marks.
The Panel notes that the Domain Name currently resolves to a pay-per-click parking website. The Panel further notes that the Domain Name incorporates Complainant's well-known trademarks in its entirety, which indicates, in the circumstances of this case, that Respondent registered and used the Domain Name with the intention to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the trademarks of Complainant as to the source, sponsorship, affiliation, or endorsement of its website or location or of a service on its website or location, which constitutes registration and use in bad faith pursuant to paragraph 4(b)(iv) of the Policy.
The Panel finds that Complainant has proven that the Domain Name has been registered and is being used in bad faith. 7. Decision
For 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 Complainant.
Dinant T. L. Oosterbaan
Sole Panelist
Date: November 27, 2015
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