The Complainant is Bayer AG, Germany, represented by BPM Legal, Germany.
The Respondent is Super Privacy Service LTD c/o Dynadot, United States of America (“United States”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 30, 2020. On January 31, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On February 3, 2020, the Registrar 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 4, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 24, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 25, 2020. The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on March 19, 2020. 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, Bayer AG, is a multinational pharmaceutical, life sciences, and agrochemical company established in Germany. The Complainant is one of the largest pharmaceutical companies worldwide and employs over 100,000 employees worldwide. The Complainant is the holder of various trademark registrations for BAYER covering an extensive range of goods and services, including the United States where the Respondent is located. The Complainant provides evidence of, inter alia, the following trade and service mark registrations: - BAYER, United States trademark registration No. 2213149, registered on December 22, 1998 in class 5; - BAYER, United States trademark registration No. 3222255, registered on March 27, 2007 in classes 1, 5 and 31. On November 14, 2019, the Complainant also filed a trademark application for LEAPS with the European Union Intellectual Property Office under filing No. 18153150 in classes 36, 42, and 44. The Disputed Domain Name The Complainant considers the Disputed Domain Name to be confusingly similar to a trademark in which it claims to have rights. The Complainant further claims that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. According to the Complainant, the Respondent has not used the Disputed Domain Name in connection with a bona fide use. Also, according to the Complainant, the Respondent has not been commonly known by the Disputed Domain Name and is in no way affiliated with the Complainant. Finally, the Complainant claims that the Disputed Domain Name was registered and is being used in bad faith for a number of reasons: - the Respondent deliberately targeted the Complainant by registering the Disputed Domain Name; - the Respondent registered the Disputed Domain Name primarily for the purpose of selling it to the Complainant or to one of its competitors in return for a payment that exceeds the costs directly related to the Disputed Domain Name; - the Respondent’s registration of the Disputed Domain Name prevents the Complainant from reflecting its trademarks in a corresponding domain name and the Respondent has engaged in a pattern of such conduct; - the fact that the Respondent registered a domain name which includes a trademark that is obviously connected with the Complainant and its products supports the finding of bad faith as the very use of such domain name by someone with no connection with the products suggests opportunistic bad faith; - the Respondent’s use of the Disputed Domain Name is qualified to disrupt the Complainant’s business in that it is capable of reducing the number of visitors to the Complainant’s website, and may adversely affect the Complainant’s business; - the registration of the Disputed Domain Name by the Respondent constitutes an abusive threat hanging over the head of the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15 of the Rules provides that the Panel is to decide the 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. The onus is on the Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that the Complainant must show that all three elements set out in paragraph 4(a) of the Policy have been established before any order can be made to transfer the Disputed Domain Name. As the UDRP proceedings are expedited and do not have any evidentiary discovery, the standard of proof is the balance of probabilities. Thus, for the Complainant to succeed it must prove, within the meaning of paragraph 4(a) of the Policy, that: (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 therefore deal with each of these requirements. A. Identical or Confusingly Similar To prove this element, the Complainant must first establish that there is a trademark or service mark in which it has rights. The Complainant has clearly established that there are BAYER trademarks in which it has rights. The trademarks have been registered and used in connection to the Complainant’s biochemical, pharmaceutical, and life sciences services and products. The Panel observes that the Complainant’s trademark application for the mark LEAPS is currently pending. A pending trademark application does not by itself establish trademark rights within the meaning of UDRP paragraph 4(a)(i) (see section 1.1.4 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The Disputed Domain Name As stated at section 1.8 of the WIPO Overview 3.0, where the relevant trademark is recognizable within the Disputed Domain Name, the addition of other terms would not prevent a finding of confusing similarity. In this case, the Panel finds that the Complainant’s BAYER mark is clearly recognizable within the Disputed Domain Name. As the Complainant’s trademark application for the mark LEAPS is still pending and as the word “leaps” also has dictionary meaning, the Panel considers the word as a non-distinctive term for the purpose of assessing the confusing similarity. Additionally, it is well established that generic Top-Level Domains (“gTLD”) (in this case “.com”) may be disregarded when considering whether the Disputed Domain Name is confusingly similar to the trademark in which the Complainants have rights (see section 1.11 of the WIPO Overview 3.0). In light of the above, the Panel considers the Disputed Domain Name to be confusingly similar to the Complainant’s BAYER mark. Accordingly, the Complainant has made out the first of the three elements of the Policy that it must establish. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. As established by previous UDRP panels, it is sufficient for the Complainant to make a prima facie showing that the Respondent has no rights or legitimate interests in the Disputed Domain Name in order to place the burden of production on the Respondent (see section 2.1 of the WIPO Overview 3.0). The Panel notes that the Respondent has not been commonly known by the Disputed Domain Name and that the Respondent does not seem to have acquired trademark or service mark rights. The Respondent’s use and registration of the Disputed Domain Name was not authorized by the Complainant. There are no indications that a connection between the Complainant and the Respondent exists. Moreover, the Panel is of the opinion that the Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name. In fact, the Disputed Domain Name simply resolves to a registrar-sponsored page offering the Disputed Domain Name for sale at 990 USD. The offering of domain names for sale is, in appropriate circumstances, evidence of a lack of rights or legitimate interests in the domain names. The offering of the Disputed Domain Name for sale targeting the trademark of the Complainant appears intended for commercial gain and, in these circumstances, does not constitute a legitimate noncommercial or fair use of the Disputed Domain Name. Furthermore, the composition of the Disputed Domain Name, consisting of the Complainant’s BAYER mark and an additional term relating to a pending trademark registration of the Complainant, carries a risk of implied affiliation with the Complainant (see section 2.5.1 of the WIPO Overview 3.0). The Respondent had the opportunity to demonstrate its rights or legitimate interests but did not do so. In the absence of a Response from the Respondent, the prima facie case established by the Complainant has not been rebutted. Therefore, the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in the Disputed Domain Name. In light of the above, the Complainant succeeds on the second element of the Policy. C. Registered and Used in Bad Faith The Complainant must prove on the balance of probabilities both that the Disputed Domain Name was registered in bad faith and that it is being used in bad faith (see, e.g., Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd,WIPO Case No. D2006-1052). Paragraph 4(b) of the Policy provides a non-exclusive list of factors, any one of which may demonstrate bad faith namely: “(i) circumstances indicating that you [the registrant] have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online 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 product or service on your website or location.” In the present case, the Panel finds it inconceivable that the Respondent was unaware of the Complainant and its trademark rights when it registered the Disputed Domain Name. The Disputed Domain Name includes the Complainant’s distinctive and well-known BAYER trademark in its entirety with the addition of the word “leaps”, for which the Complainant filed a trademark application on the same day the Respondent registered the Disputed Domain Name. In the Panel’s view, this is a strong indication of the Respondent’s awareness of the Complainant, its trademark rights, and its trademark application. The Panel finds that the Respondent’s awareness of the Complainant’s trademark rights at the time of registration suggests bad faith (see Red Bull GmbH v. Credit du Léman SA, Jean-Denis Deletraz,WIPO Case No. D2011-2209; Nintendo of America Inc v. Marco Beijen, Beijen Consulting, Pokemon Fan Clubs Org., and Pokemon Fans Unite,WIPO Case No. D2001-1070, where POKÉMON was held to be a well-known trademark of which the use by someone without any connection or legal relationship with the complainant suggested opportunistic bad faith; BellSouth Intellectual Property Corporation v. Serena, Axel,WIPO Case No. D2006-0007). The Respondent is using the Disputed Domain Name in connection with a registrar-sponsored parking page offering the Disputed Domain Name for sale at 990 USD. In view of the above circumstances, the Panel considers that offering the Disputed Domain Name for sale at 990 USD further supports a finding of bad faith (see section 3.1.1 of the WIPO Overview 3.0). Moreover, the registration of a domain name that is identical or confusingly similar to a widely-known trademark may create a presumption of bad faith when it is difficult to imagine any plausible future active use of a domain name by the respondent that would be legitimate and would not interfere with the complainant’s well-known mark (see section 3.1.4 of the WIPO Overview 3.0). In the Panel’s view, the Complainant’s BAYER trademark is well-known and widely used, which makes it difficult to conceive any plausible legitimate future use of the Disputed Domain Name by the Respondent. This is even strengthened by the Respondent’s use of the word “leaps”, regardless of any trademark rights the Complainant could possibly invoke regarding this word in the future. Also, the Respondent failed to submit a response providing evidence of actual or contemplated good faith use and clearly conceals its identity by using a privacy service. In addition, the Complainant provided evidence of the fact the Respondent engaged in a clear pattern of abusive registrations that prevent trademark holders from reflecting their trademarks in domain names. In the Panel’s view, this is also an indication of the Respondent’s bad faith (see section 3.1.2 of the WIPO Overview 3.0). By failing to respond to the Complaint, the Respondent did not take any initiative to contest the foregoing. Pursuant to paragraph 14 of the Rules, the Panel may draw the conclusions it considers appropriate. Therefore, the Panel finds that, on the balance of probabilities, it is sufficiently shown that the Disputed Domain Name was registered and is being used in bad faith. The Panel deems it unnecessary to address the Complainant’s additional claims in that regard. In light of the above, the Complainant also succeeds on the third and last element 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 Flip Jan Claude Petillion
Sole Panelist
Date: April 2, 2020
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