Westmore · UDRP DecisionBayercosmetics.com
The Panel ordered transfer of <bayercosmetics.com> to Bayer AG. It found the domain confusingly similar to the well-known BAYER mark because it incorporated the mark in full with the generic term “cosmetics.” The Panel also found no rights or legitimate interests because Respondent lacked authorization and used the domain for a website advertising third-party products rather than for legitimate noncommercial or fair use. Bad faith was established based on the renown of the BAYER mark, Respondent’s likely actual knowledge of it, and use of the domain for cosmetics-related content unrelated to Complainant.
The timeline behind bayercosmetics.com
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This decision illustrates a straightforward mark-plus-descriptive-term dispute in which the added word corresponded to the subject matter of the respondent’s website. The combination of a well-known mark, related commercial content, lack of authorization, and no Response supported findings for Complainant on all three UDRP elements.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Bayer AG v. Sofia Artola Plunkett Case No. D2018-1273 1. The Parties Complainant is Bayer AG of Leverkusen, Germany, represented by BPM Legal, Germany. Respondent is Sofia Artola Plunkett of Kilwinning, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar The disputed domain name <bayercosmetics.com> is registered with OVH (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 7, 2018. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 8, 2018, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing Respondent’s 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 Respondent of the Complaint, and the proceedings commenced on June 11, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 1, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 4, 2018. The Center appointed Michael A. Albert as the sole panelist in this matter on July 23, 2018. 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 AG is a well-known company with core competencies in the fields of healthcare, nutrition and plant protection. The company name “Bayer” dates back to 1863, when the firm of “Friedrich Bayer & Co.” was established in the town of Elberfeld, now part of the city of Wuppertal in Germany. In 1881, the name was transferred to a stock corporation called “Farbenfabriken vorm. Friedrich Bayer & Co.”. This company began manufacturing and marketing pharmaceutical products in 1888 and has sold such products under the BAYER trademark ever since that time. Complainant is the owner of about 700 registrations and pending applications of the word mark BAYER alone, including the following registrations: - European Union Trademark registration No. 011628625 of August 19, 2013; - International Trademark registration No. 182970 of February 25, 1955. As a result of exclusive and extensive use, Complainant’s BAYER mark has acquired a significant goodwill and is widely known. Furthermore, Complainant has a strong presence on the Internet. Complainant and its subsidiaries own hundreds of domain name registrations containing the BAYER mark, including <bayer.com> and <bayer.fr>. Due to Complainant’s global online use of its BAYER mark, such a mark is strongly and exclusively associated with Complainant. The disputed domain name was registered on February 14, 2018 and resolves to a website promoting competing cosmetic products. 5. Parties’ Contentions A. Complainant Complainant contends that the disputed domain name is identical or confusingly similar to its BAYER mark because it consists of BAYER mark in its entirety, adding only the generic term “cosmetics” after Complainant’s mark. Complainant also contends that Respondent has no rights or legitimate interests in the disputed domain name because Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks and has not permitted Respondent to apply for or use any domain name incorporating the BAYER mark. Finally, Complainant contends that Respondent has registered and is using the disputed domain name in bad faith. The BAYER mark is well-known and exclusively associated with Complainant and its products. Therefore, “Bayer” is not a word any market participant or other domain registrant would legitimately choose unless seeking to create an impression of an association with Complainant. In addition, the fact that Respondent is using the disputed domain name in connection with Complainant’s products clearly indicates that Respondent deliberately targets Complainant and its trademarks. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The disputed domain name is confusingly similar to Complainant’s distinctive mark. The disputed domain name fully incorporates the well-known BAYER Mark adding only the generic word “cosmetics” after Complainant’s mark. Numerous UDRP decisions have found that the mere addition of generic terms to a complainant’s mark does not prevent a finding of confusing similarity with the complainant’s mark. See , e.g. , Lotto Sport Italia S.p.A. v. David Dent , WIPO Case No. D2016-2532 . The Panel finds Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Complainant has not authorized, licensed, or consented to Respondent’s registration and use of a domain name incorporating Complainant’s BAYER mark, or any confusingly similar variation thereof. There is no evidence which suggests that Respondent is making a legitimate noncommercial or fair use of the disputed domain name or is commonly known by the disputed domain name. Respondent is using the disputed domain name in connection with a website, which contains advertising for third parties’ products. In addition, the disputed domain contains links to a blog, which is connected to a Facebook page presenting products and posts identical to the ones provided by Respondent at the disputed domain name. Such use of an identical or confusingly similar mark for related products cannot establish legitimate rights by Respondent. The Panel finds Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Respondent registered and uses the disputed domain name in bad faith. Respondent is highly likely to have had actual knowledge of Complainant’s famous BAYER mark, as evidenced by the worldwide renown that mark has attained through extensive advertising and use, as well as by Respondent’s use of the identical mark in the disputed domain name. It is unlikely that Respondent’s registration of the disputed domain name was anything other than an intentional effort to capitalize on, or otherwise take advantage of, Complainant’s trademark rights. In addition, the use of the disputed domain name to resolve to a website with information about cosmetics unrelated to the Complainant is a use in bad faith. Accordingly, the Panel finds Complainant has satisfied the requirements of paragraph 4(a)(iii) 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 <bayercosmetics.com> be transferred to Complainant. Michael A. Albert Sole Panelist Date: August 3, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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