The Complainant is Bayer AG, Germany, represented by BPM Legal, Germany.
The Respondent is Withheld for Privacy Purposes Privacy service provided by Withheld for Privacy ehf, Iceland / Todd Peter, Canada.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 19, 2021. On August 20, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 20, 2021, 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 the Complainant on August 27, 2021 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 August 30, 2021.
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 August 31, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 20, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 21, 2021.
The Center appointed Jeremy Speres as the sole panelist in this matter on October 7, 2021. 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 BackgroundThe Complainant is a German company operating globally with core competencies in the fields of healthcare, nutrition and plant protection. The Complainant has traded under the BAYER mark since the late 1800s. The Complainant’s subgroup CropScience does business on all five continents, manufacturing and selling agricultural chemicals, with its web presence available at “www.cropscience.bayer.com”.
The Complainant’s BAYER mark is registered in many territories. The Complainant presented two international registrations designating various territories outside of North America. More relevant for this matter, the Panel has independently established that the Complainant owns various registrations in Canada (the Respondent’s territory) for its BAYER mark, including registration number NFLD762 BAYER in classes 2 and 5 covering, amongst others and most relevant for this matter, herbicides, which was registered on May 20, 1919.
The Domain Name was registered on July 22, 2020 and, as at the drafting of this Decision, resolved to a parked page displaying pay-per-click (“PPC”) advertisements for goods and services that, amongst others, compete with the Complainant. The Domain Name has also, in the past, been used to send emails impersonating the Complainant for fake job offers seeking personal information from recipients.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the Domain Name is confusingly similar to its mark, that the Respondent has no rights or legitimate interests in it, and the Domain Name was registered and used in bad faith given that it takes advantage of the Complainant’s well-known mark to divert consumers to competing goods and services using PPC advertisements, the Domain Name has been used to perpetuate fraud, and the Respondent has a history of similar fraudulent activities.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarWhere the trade mark is recognisable in the domain name, the addition of other terms does not prevent a finding of confusing similarity (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 1.8). The Complainant’s mark is the most distinctive element of the Domain Name and the remainder, apart from the generic Top-Level Domain, consists of the term “cropscience” clearly separated from the Complainant’s mark with a hyphen, which does not prevent a finding of confusing similarity under the first element. The Complainant has satisfied the standing requirement under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsThe Complainant’s mark was registered (including in the Respondent’s territory) and well-known in many territories long prior to registration of the Domain Name, as confirmed in numerous UDRP cases (e.g. Bayer Aktiengesellschaft v. Yongho Ko,WIPO Case No. D2001-0205). The Domain Name is confusingly similar to the Complainant’s mark and has been used to advertise goods and services that compete with the Complainant and to send emails impersonating the Complainant, neither of which can confer rights or legitimate interests (WIPO Overview 3.0 at sections 2.9 and 2.13).
The Complainant has certified that the Domain Name is unauthorised by it, the Respondent did not file a Response, and there is no evidence that any of the circumstances set out in paragraph 4(c) of the Policy pertain. The Complainant has thus made out a prima facie case that the Respondent lacks rights or legitimate interests, the burden of production shifts to the Respondent (WIPO Overview 3.0 at section 2.1), and given that no Response was filed, the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThe Complainant’s mark has no ordinary meaning and is highly specific to the Complainant. This indicates that the Domain Name was registered with the Complainant’s mark in mind (Bayer Aktiengesellschaft v. H. Monssen,WIPO Case No. D2003-0275).
The Domain Name has been used to advertise competitors of the Complainant with PPC advertisements, which is a clear indicator of targeting for commercial gain under paragraph 4(b)(iv) of the Policy. See Dr. Martens International Trading GmbH, Dr. Maertens Marketing GmbH v. Private Whois Service,WIPO Case No. D2011-1753. Although the advertisements may be served programmatically by a third party, the Respondent cannot disclaim responsibility for them (WIPO Overview 3.0 at section 3.5).
In addition, as the Respondent used the Domain Name to send fraudulent emails impersonating the Complainant, the Panel finds that the Respondent used it in bad faith (WIPO Overview 3.0 at section 3.4).
The Complainant established that the Respondent has, in the past, been flagged as participating in various fraudulent schemes of a similar nature to the one identified in this case by scam monitoring websites. The Panel has also independently established that the Respondent has been the unsuccessful respondent in five cases decided under the Policy. It is clear that the Respondent is a serial cybersquatter and this case is merely a continuation of that pattern. Paragraph 4(b)(iv) of the Policy is eminently applicable here.
The Complainant has satisfied paragraph 4(a)(iii) of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name
Jeremy Speres
Sole Panelist
Date: October 11, 2021