WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bayer AG v. Cagri Savan
Case No. D2015-1573
1. The Parties
The Complainant is Bayer AG, Leverkusen, Germany, represented by BPM Legal, Germany.
The Respondent is Cagri Savan, Bakirkoy, Istanbul, Avrupa, Turkey, self represented.
2. The Domain Name and Registrar
The disputed domain name <bayer.global> (the "Disputed Domain Name") 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 September 3, 2015. On September 3, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 3, 2015, 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 September 9, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 29, 2015. On September 29, 2015 the Respondent sent an email to the Center. The Panel will in its discretion treat this email as the Response.
The Center appointed Nick J. Gardner as the sole panelist in this matter on October 12, 2015. 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 one of the world's leading chemical and health care companies, which has its headquarters in Leverkusen, Germany. The Complainant's stock is included in nearly all the major share indices, traded on all German stock exchanges and included in the DAX 30, a Blue Chip stock market index consisting of the 30 major German companies trading on the Frankfurt Stock Exchange.
The Complainant does business on all five continents, manufacturing and selling numerous products, including human pharmaceutical and medical care products, veterinary products, diagnostic products, and agricultural chemicals. In Turkey, where the Respondent is located, the Complainant has a local subsidiary trading under the name "Bayer Türk Kimya San. Ltd. Şti.".
The Complainant owns more than 700 registrations for the trademark BAYER throughout the world, including in Turkey (registration no. 100647 dated December 31, 1997).
The Complainant has also established Internet web sites located at a number of generic and country code Top Level Domains ("gTLDs" and "ccTLDs") including <bayer.com> and <bayer.com.tr>.
The Disputed Domain Name was registered on June 25, 2015. It is used in relation to a webpage which has a single page with a notice headed "website coming soon".
The word "bayer" is a word which has no other meaning in the English language apart from in relation to the Complainant or its products. See further below for the Respondent's contentions as to meanings it has in Turkish.
5. Parties' Contentions
The Complainant's case can be summarised as follows.
a) The Disputed Domain Name is identical to the BAYER trademark.
b) The Respondent does not have any rights or legitimate interests in the Disputed Domain Name.
c) The Respondent uses the Disputed Domain Name in bad faith as there is no legitimate purpose he could use the Disputed Domain Name for and passive holding of a domain name corresponding to a well known trademark like BAYER amounts to bad faith use.
The Complainant relies upon a large number of previous WIPO UDRP decisions concerning its BAYER trademark.
The Complainant says the Respondent is engaged in registering domain names containing famous trademarks. Besides the Disputed Domain Name, which was registered on June 25, 2015, the Respondent has registered a number of additional domain names including well-known trademarks, such as:
<airfrance.global>; <azal.global>; <bmwauto.services>; <buyemirates.com>; <carlyle.global>; <carlyle.international>; <gsk.global>; <gskconsumerhealth.com>; <gskmedical.com>; <premierleague.world>; and <vwauto.services> .
The Respondent's email of September 29, 2015 reads as follows:
"To whom it may concern;
I, Cagri Savan purchased bayer.global from www.godaddy.com. As an each individual, I used my right to purchase available domain name, bayer.global. I did not know that buying available domain names from domain registrar websites like godaddy.com is an illegal issue. Additionally, in Turkish definition of bayer is Bay (means Mr.) and Er (means Soldier). On the other hand, I would like to inform you that I did not establish a website refer to Bayer AG and did not sell any of Bayer AG products or link it to any other websites.
6. Discussion and Findings
Paragraph 4(a) of the Policy states that the Complainant must prove each of the three following elements:
i. the Disputed Domain Name is identical to or confusingly similar to a trademark or service mark in which the Complainant has rights;
ii. the Respondent have no rights or legitimate interests in the Disputed Domain Name;
iii. the Disputed Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has submitted detailed evidence that it is the owner of numerous trademarks in respect the words "bayer".
The Panel holds that the Disputed Domain Name is identical to the above trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled. It is well established that the specific top level of the domain name (in this case ".global") does not affect the domain name for the purpose of determining whether it is identical or confusingly similar – see for example Rollerblade, Inc. v. Chris McCrady WIPO Case No. D2000-0429.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy non-exhaustively lists three circumstances that demonstrate a right or legitimate interest in the domain name:
i. before any notice to you of the dispute, your use of, or demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
ii. you (as an individual, business or other organisation) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
iii. you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
None of these apply in the present circumstances. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the BAYER trademark. The Complainant has prior rights in the BAYER trademark which precede the Respondent's registration of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see for example Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
The Panel finds that the Respondent has failed to rebut the Complainant's prima facie case and to produce any evidence to establish any rights or legitimate interests in the Disputed Domain Name. Accordingly the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled.
C. Registered and Used in Bad Faith
In the present circumstances, the distinctive nature of the BAYER trademark, and the evidence as to the extent of the reputation the Complainant enjoys in the BAYER trademark, and the identical nature of the Disputed Domain Name to the BAYER trademark leads the Panel to conclude the registration and use was in bad faith.
The Respondent says that the word "Bayer" in Turkish combines two words "bay" meaning "mr" and er meaning "soldier". The Panel does not regard this as a credible explanation for the Respondent having registered the Disputed Domain Name. Looking at the evidence as a whole the Panel on the balance of probabilities does not accept the explanation offered by the Respondent. The Panel is conscious that proceedings under the UDRP are of a limited and restricted nature, do not involve oral hearings, discovery or cross examination, and hence are only applicable to clear cut cases, and it is not usually appropriate to decide disputed questions of fact or matters of truth or falsehood. That does not however mean the Panel cannot reach a conclusion as to the veracity of a case that is being advanced where the only evidence that is provided is in the form of conclusory statements that are inherently not credible, and which are not supported by relevant corrobative or third party evidence. The Panel considers this to be such a case. The Respondent has not explained why he would have any reason to register a domain name meaning "mrsoldier" nor has he produced any evidence as to any steps he has taken to use the Disputed Domain Name for any purpose to which those words might relate. Taking all of this into account, together with the evidence produced by the Complainant (which has not been disputed) as to the several other famous marks the Respondent has registered as domain names (see above) the Panel rejects the Respondent's explanation.
In the present case, the Panel concludes that it is inconceivable that the Respondent selected the Disputed Domain Name independently and without knowledge of the Complainant or its products. The website operated by the Respondent at the Disputed Domain Name comprises a simple "website coming soon" notice which the Panel suspects is probably automatically generated. In the circumstances of this case the Panel adopts the approach set out in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") at section 3.2 as follows "With comparative reference to the circumstances set out in paragraph 4(b) of the UDRP deemed to establish bad faith registration and use, panels have found that the apparent lack of so-called active use (e.g., to resolve to a website) of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether the Respondent is acting in bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant's concealment of its identity. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa. Some panels have also found that the concept of passive holding may apply even in the event of sporadic use, or of the mere "parking" by a third party of a domain name (irrespective of whether the latter should also result in the generation of incidental revenue from advertising referrals)".
In this case the Panel cannot conceive of any credible use for the Disputed Domain Name that did not involve an attempt to trade off the Complainant's reputation and this must have been apparent to the Respondent when registering the Disputed Domain Name. It does not matter that the Respondent has not as yet used the Disputed Domain Name for such a purpose. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574, Ladbroke Group Plc v. Sonoma International LDC, WIPO Case No. D2002-0131, Westdev Limited v. Private Data, WIPO Case No. D2007-1903; Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393, and Intel Corporation v. The Pentium Group, WIPO Case No. D2009-0273 Accordingly, and applying the principles in the above noted UDRP decisions the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith.
Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled.
For all 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 <bayer.global> be transferred to the Complainant.
Nick J. Gardner
Date: October 26, 2015