Westmore · UDRP DecisionBayernow.com
The Panel ordered transfer of <bayernow.com> to Bayer AG. It found the domain confusingly similar to the BAYER trademark because it incorporated the mark in full with the additional word “now.” The Complainant established an unrebutted prima facie case that the Respondent lacked rights or legitimate interests. Bad faith registration and use were found from the longstanding and substantially earlier BAYER rights, the Respondent’s inferred awareness of the mark, and use of the domain for PPC links related to the Complainant and third parties, falling within paragraph 4(b)(iv) of the Policy.
The timeline behind bayernow.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
This decision illustrates a straightforward trademark-plus-term and PPC-parking fact pattern. The addition of “now” did not prevent confusing similarity because BAYER remained fully recognizable. For bad faith, the Panel combined the substantial priority and longevity of the BAYER rights with PPC links related to the Complainant and third parties, expressly applying Policy paragraph 4(b)(iv).
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. Registration Private, Domains By Proxy, LLC. / Elizabeth Hulbert Case No. D2018-1841 1. The Parties The Complainant is Bayer AG of Leverkusen, Germany, represented by BMP Legal, Germany. The Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States of America (“United States”) / Elizabeth Hulbert of Bellingham, Washington, United States. 2. The Domain Name and Registrar The disputed domain name <bayernow.com> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 11, 2018. On August 13, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 14, 2018, 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 August 23, 2018, 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 September 5, 2018. 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 September 12, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 2, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 5, 2018. The Center appointed Nayiri Boghossian as the sole panelist in this matter on October 19, 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 The Complainant is a world renown company in the field of healthcare. The Complainant owns the trademark BAYER and has registered it in the United States under the following registrations nos. 1482868, 1484862, 2213149, 3222255, 4651390 and 4860203. The oldest registrations date back to April 1988 (United States Trademark Registration No. 1482868, registered on April 5, 1988). The Respondent registered the disputed domain name on April 7, 2014 and is using it in connection with a parking website offering pay-per-click (“PPC”) links. 5. Parties’ Contentions A. Complainant The Complainant contends that it is a well-known international company known in the field of healthcare, nutrition and plant protection. It is a publicly traded company and its name “Bayer” dates back to 1863. The company operating under this name started manufacturing pharmaceutical products in 1888 and sold products under the trademark BAYER. The Complainant has over 250 affiliates and more than a hundred thousand employees. It has registered the trademark BAYER in the United States and has presence online. It has hundreds of domain names which include its trademark. The trademark BAYER is well-known. The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The disputed domain name incorporates the trademark BAYER of the Complainant in its entirety. The generic Top-Level Domain (“gTLD”) “.com” should be ignored when assessing confusing similarity. The word “now” is generic and the trademark BAYER is easily recognizable in the disputed domain name. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has not licensed or authorized the Respondent to use its trademark. In addition, there is no evidence that the Respondent is using or preparing to use the disputed domain name in connection with a bona fide offering of goods or services. There is also no evidence that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name or is commonly known by that name. The Complainant contends that the disputed domain name was registered and is being used in bad faith. It is unthinkable that the Respondent was not aware of the Complainant and its trademark due to the well-known status it enjoys. The website of the Respondent has advertising links targeting the Complainant and its trademark. The disputed domain name directs to a parking website, which provides links to third party websites. This shows that the Respondent aims at diverting traffic from the Complainant in return of click-through revenues. The Respondent is attempting to attract for commercial gain Internet users to its website by creating the likelihood of confusion with the Complainant’s trademark. There’s indication of opportunistic bad faith. The disputed domain name may reduce the number of visitors to the Complainant’s website. The use of a privacy registration services is an indication of bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant holds a number of trademark registrations for the trademark BAYER. The Panel is satisfied that the Complainant has established its ownership of the trademark BAYER. The disputed domain name comprises the Complainant’s trademark in its entirety followed by the word “now”, which does not eliminate confusing similarity. The Complainant’s trademark is clearly recognizable in the disputed domain name. The gTLD “.com” may typically be ignored when assessing confusing similarity as held by prior UDRP panels. Consequently, the Panel finds that the disputed domain name is confusingly similar to the trademark of the Complainant and that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Pursuant to the Complainant’s contestations set out above, the Panel finds that the Complainant has made a prima facie showing that the Respondent does not have any rights or legitimate interests in the disputed domain name, particularly by asserting that it never authorized the Respondent to use its trademark as part of the disputed domain name. The Respondent has not provided evidence of circumstances of the types specified in paragraph 4(c) of the Policy, or of any other circumstances, giving rise to rights or legitimate interests in the disputed domain name. Consequently, the Panel finds that the Complainant has met the requirement under the Policy of showing that the Respondent does not have any rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The element of bad faith is evidenced by the fact that the name “Bayer” has been in existence for more than a century and used by the Complainant and its predecessors. It has further been registered as a trademark for 26 years before the Respondent registered the disputed domain name. Hence, it must be that the Respondent was aware of the Complainant and its trademark when she registered the disputed domain name. Furthermore, offering PPC links on the website to which the disputed domain name resolves, in particular to links related to the Complainant and third parties, which is what the Respondent is doing, has been considered by UDRP Panels to constitute bad faith. Therefore, the Panel concludes that the disputed domain name is registered and is being used in bad faith. Such conduct falls squarely within the meaning of paragraph 4(b)(iv) of the Policy, and accordingly, the Panel finds that the Complainant has satisfied 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, <bayernow.com>, be transferred to the Complainant. Nayiri Boghossian Sole Panelist Date: October 22, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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