The Complainant is Bayer AG of Leverkusen, Germany, represented by BPM Legal, Germany.
The Respondent is Whois Agent, Whois Privacy Protection Service, Inc. of Kirkland, Washington, United States of America (“United States”) / Syed Hussain, IBN7 Media Group of Closter, New Jersey, United States. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with N, Inc. (N LLC) (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 18, 2016. On November 21, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 22, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 28, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 3, 2016.
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 the Respondent of the Complaint, and the proceedings commenced on December 5, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 25, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 27, 2016.
The Center appointed Dawn Osborne as the sole panelist in this matter on January 13, 2017. 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 owns the well known trade mark BAYER, inter alia, in the United States where the Respondent is based, which is registered as of April 5, 1988 for, inter alia, pharmaceuticals with first use recorded as the year 1899.
On May 12, 2016 rumours circulated in the international media in connection with the Complainant’s intention to explore a potential bid for its competitor “Monsanto Co”. The Complainant and Monsanto agreed on their merger in September 2016.
The Respondent registered the Domain Name on May 12, 2016. It is being used to point to a parking page with links to third party commercial web sites. 5. Parties’ Contentions A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant is a leading company in the field of, inter alia, health care. The name “Bayer” dates back to 1863 when the firm of Friedrich Bayer & Co. was established in Germany. This company began manufacturing pharmaceutical products in 1888 and has sold such products under the BAYER trade mark ever since that time.
The Complainant owns the well-known trade mark BAYER, inter alia, registered in the United States where the Respondent is based which is registered for, inter alia, pharmaceuticals with first use recorded as the year 1899. It owns the domain names and .
The Domain Name fully incorporates the Complainant’s BAYER mark and is confusingly similar to that mark. The fact that the disputed domain name includes the third-party trade mark MONSANTO does not eliminate the confusing similarity between Complainant’s trade mark and the Domain Name. On the contrary, the use of the BAYER mark in connection with the MONSANTO mark strengthens the likelihood of confusion as the second level directly refers to Complainant and its intentions to merge with the company “Monsanto”.
The Respondent has no rights or legitimate interests in the Domain Name. The Complainant has not licensed or otherwise permitted the Respondent to use any of its trade marks. The Respondent is not commonly known by the Domain Name.
On May 12, 2016 rumours circulated in the international media in connection with the Complainant’s intention to explore a potential bid for its competitor “Monsanto Co”. The Complainant and Monsanto agreed on their merger in September 2016.
The Respondent registered the Domain Name on May 12, 2016. It is being used to point to a parking page with links to third-party commercial websites. The Respondent is the registered owner of more than 1,800 domain names. He has been involved in at least 28 alternative disputes resolution proceedings all of which resulted in the transfer of the domain names involved to the respective complainants.
Use of a well-known mark in connection with a web site offering third party products for sale is not bona fide use under the policy.
The Domain Name has been registered and used in bad faith.
The Respondent registered the Domain Name on the same day that the international media reported about a possible bid by the Complainant for Monsanto Co., clearly evidencing that the Respondent is an alert entrepreneur deliberately targeting the Complainant and its trade marks. The Respondent is a serial cybersquatter with a great preference for domain names corresponding to the potential names of newly merged entities.
The use of the Domain Name to redirect Internet users diverting traffic intended for the Complainant to the Respondent’s web site for commercial gain is registration and use in bad faith.
The registration also prevents the Complainant from reflecting its trade marks in the corresponding Domain Name and Respondent has engaged in a pattern of such conduct which constitutes registration and use in bad faith.
The Respondent’s use of the Domain Name is equipped to disrupt the Complainant’s business reducing the number of visitors to the Complainant’s web site and also constitutes an abusive threat to the Complainant which is also bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical and/or Confusingly Similar
The Domain Name consists of the Complainant’s BAYER mark (which is registered in the United States for, inter alia, pharmaceuticals with first use in commerce recorded as 1899), the third-party trade mark MONSANTO and the generic Top-Level Domain (“gTLD”) “.com”. The Panel finds that the Complainant’s mark is still readily identifiable in the Domain Name and the addition of the MONSANTO mark does not distinguish the Domain Name from the Complainant’s trade mark pursuant to the Policy and the confusion may, in fact, be increased by the addition of MONSANTO as the Complainant’s intention to merge with the MONSANTO pharmaceutical company have been reported in the press.
The gTLD “.com” does not serve to distinguish the Domain Name from the BAYER mark, which along with the MONSANTO element is the distinctive component of the Domain Name.
Accordingly, the Panel holds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy. B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint and has not put forward any explanation why he would be entitled to register a domain name containing the Complainant’s BAYER trade mark and the third-party MONSANTO mark both of which are well known.
The Respondent does not appear to have any registered trade marks or intellectual property rights associated with the “Bayer” or “Monsanto” names. There is no evidence that he is commonly known by these names and he does not have any consent from the Complainant to use its BAYER mark.
The Respondent does not appear to have used the Domain Name for any bona fide offering of services of his own. Currently, there is a link farm page attached to the Domain Names referring Internet users to third-party commercial businesses. Given the famous nature of the Complainant’s BAYER mark and the third-party MONSANTO mark commercial use providing links to unconnected businesses is not bona fide use. It is also clearly not non-commercial or fair use.
The Respondent does not deny any knowledge of the Complainant and its rights or the Monsanto company and its rights or provide any evidence of intended use in any other capacity than to refer to them.
Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including “circumstances indicating that [the Respondent has] registered or [has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [its] documented out-of-pocket costs directly related to the domain name;” (see paragraph 4(b)(i) of the Policy).
The Respondent does not deny that he is or was aware of the Complainant and its rights or the MONSANTO company and its rights and has not provided any evidence of use in any other capacity than to refer to them. The timing of the registration of the Domain Name the same day that the Complainant announced its intentions to bid for the “Monsanto” company suggests opportunistic bad faith. The Complainant has also produced evidence that the Respondent is in the habit of registering domain names containing the famous names of third parties without any legitimate interests in bad faith. Accordingly, the Panel finds on the balance of probabilities that the Respondent has registered or acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name to the Complainant who is the owner of the trademark BAYER or to a competitor of the Complainant, for valuable consideration in excess of his documented out-of-pocket costs directly related to the domain name. The Panel, therefore, finds that bad faith has been demonstrated under s 4(b)(i) of the Policy. Moreover, the use of the Domain Name as a link farm is further evidence of bad faith under paragraph 4(b)(iv) of the Policy. 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 disputed domain name be transferred to Bayer AG. Although the Domain Name also incorporates the MONSANTO mark the intended merger of these two companies makes transfer to the Complainant an appropriate remedy.
Dawn Osborne
Sole Panelist
Date: January 25, 2017
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