WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bayer AG v. Ahmet Ukulge, N
Case No. D2016-0801
1. The Parties
Complainant is Bayer AG of Leverkusen, Germany, represented by BPM Legal, Germany.
Respondent is Ahmet Ukulge, N of Izmir, Turkey.
2. The Domain Name and Registrar
The disputed domain name <bayermarket.com> (the "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 April 22, 2016. On April 22, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 22, 2016, the Registrar transmitted by e-mail to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on April 26, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 16, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on May 24, 2016.
The Center appointed Robert A. Badgley as the sole panelist in this matter on June 2, 2016. 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 describes itself as "a global enterprise with core competencies in the fields of health care, nutrition and plant protection". Complainant has been in business for more than 150 years, and today manufactures and sells a variety of products, including pharmaceuticals, veterinary products, and agricultural chemicals. Complainant has traded under the mark BAYER for decades, and that mark is registered in jurisdictions throughout the world, including in Turkey, Respondent's country.
Numerous prior decisions under the Policy have found the BAYER trademark well-known or widely known.
Complainant operates a website at <bayer.com> and a Turkish website at <bayer.com.tr>.
The Domain Name was registered on February 16, 2015. The Domain Name resolves to a website offering for sale various chemical products which, according to Complainant, compete with Complainant's products.
5. Parties' Contentions
Complainant asserts that it has satisfied all three elements required under the Policy for a transfer of the Domain Name.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant clearly has rights, through registration and use, in the widely known mark BAYER. The Domain Name entirely incorporates the mark, and adds the descriptive word "market". In the Panel's view, the additional word "market" does little or nothing to reduce the confusing similarity between the mark and the Domain Name. See Swarovski Aktiengesellschaft v. WhoisGuard Protected / Peter D. Person, WIPO Case No. D2014-1447 (domain name <swarovskimarket.net> is confusingly similar to SWAROVSKI mark).
Complainant has established Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] 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 [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial 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.
Respondent has not come forward to explain its bona fides, and has instead allowed the allegations in the Complaint to go unrebutted. Complainant alleges, and it is not contested, that it has not authorized Respondent in any manner to use the BAYER mark in a domain name or otherwise. The Panel finds credible Complainant's allegations that Respondent has made no legitimate noncommercial or fair use of the Domain Name, is not commonly known by the Domain Name, and has made no use of the Domain Name (or demonstrable preparations to use the Domain Name) in connection with a bona fide offering of goods or services. See Forest Laboratories, Inc. v. Awad Kajouk, WIPO Case No. D2007-1650 (use of a domain name incorporating complainant's trademark for a website selling products in competition with complainant is not a bona fide use).
Complainant has established Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, "in particular but without limitation", are evidence of the registration and use of the Domain Name in "bad faith":
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other on line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on Respondent's website or location.
The Panel finds it obvious that Respondent was aware of Complainant's widely known BAYER mark at the time it registered the Domain Name. Not only is the BAYER mark widely known and registered in Turkey, but the resolution of the Domain Name to a site which sells products in competition with Complainant's products renders it all but impossible to believe that this was a coincidence.
Respondent's conduct – registering a domain name incorporating Complainant's widely known mark and setting up a website which sells products that compete with Complainant's products – falls squarely within the meaning of Policy, paragraph 4(b)(iv), quoted above, and hence constitutes bad faith use of the Domain Name.
Complainant has established Policy paragraph 4(a)(iii).
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <bayermarket.com>, be transferred to Complainant.
Robert A. Badgley
Date: June 8, 2016