WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Bayer AG v. Robert Weinberg, Marketbuilding Team

Case No. D2018-0241

1. The Parties

The Complainant is Bayer AG of Leverkusen, Germany, represented by BPM Legal, Germany.

The Respondent is Robert Weinberg, Marketbuilding Team of San Diego, California, United States of America (“United States”), self-represented.

2. The Domain Names and Registrar

The disputed domain names <bayermonsantoseed.com>, <bayermonsantoseeds.com>, <bayer-seed.com>, <bayerseed.com>, <bayer-seeds.com>, <bayerseeds.com>, <monsantobayerseed.com> and <monsantobayerseeds.com> are registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 5, 2018. On February 5, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On February 6, 2018, 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 February 9, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 1, 2018. The Response was filed with the Center on February 23, 2018.

The Center appointed Nathalie Dreyfus as the sole panelist in this matter on March 5, 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 global enterprise with core competencies in the fields of healthcare, nutrition and plant protection. Global headquarters are 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 company name “Bayer” of the Complainant 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.

The Complainant is represented by over 250 affiliates and has more than 100,000 employees worldwide. The Complainant, itself or through the subgroups like HealthCare and CropScience, does business on all five continents, manufacturing and selling numerous of products, inter alia, human pharmaceutical and medical care products, veterinary products, diagnostic products, and agricultural chemicals. The Complainant uses a media section in its website “www.bayer.com”. For the purposes of public awareness on the matter of the merger between Bayer AG and Monsanto Company, the Complainant has created the website “www.advancingtogether.com”, where constant and official information is given on the intended upcoming acquisition.

The Complainant is the owner of about 700 registrations and pending applications of the word mark BAYER alone, including the following registrations in the United States, where the Respondent is located:

- United States Trademark BAYER, owned by Bayer Aktiengesellschaft, registration No. 1482868, registered on April 5, 1988, renewed;

- United States Trademark BAYER, owned by Bayer Aktiengesellschaft, registration No. 1484862, registered on April 19, 1988, renewed;

- United States Trademark BAYER, owned by Bayer Aktiengesellschaft, registration No. 2213149, registered on December 22, 1998, renewed;

- United States Trademark BAYER, owned by Bayer Aktiengesellschaft, registration No. 3222255, registered on January 9, 2007, renewed;

- United States Trademark BAYER, owned by Bayer Aktiengesellschaft, registration No. 4651390, registered on December 9, 2014;

- United States Trademark BAYER, owned by Bayer Aktiengesellschaft, registration No. 4860203, registered on August 19, 2014.

Together further mentioned as the “Complainant’s Trademark”.

The Complainant is the holder of hundreds of domain name registrations containing the BAYER Trademark, including but not limited to:

- <bayer.com>
- <bayer.us>

According to previous UDRP decisions, the Complainant’s BAYER Trademarks have acquired a significant goodwill and are widely well-known (See Bayer Aktiengesellschaft v. K Dangos, WIPO Case No.

D2002-0138; Bayer Aktiengesellschaft v. Dangos & Partners, WIPO Case No. D2002-1115; Bayer Aktiengesellschaft v. Yongho Ko, WIPO Case No. D2001-0205; Bayer Aktiengesellschaft v. Amaltea Impex SRL, WIPO Case No. DRO2005-0006; Bayer Aktiengesellschaft v. TMP, WIPO Case No. D2002-0132; Bayer Aktiengesellschaft v. Sonny Mei, WIPO Case No. D2006-1349; Bayer AG v.WebContents, Inc, WIPO Case No. D2009-0484; Bayer Aktiengesellschaft and Bayer HealthCare LLC v. PrivacyProtect.org, Domain Admin / Pantages Inc, Pantages, WIPO Case No. D2011-0201; Bayer Aktiengesellschaft v. Lin Shen, WIPO Case No. DAE2012-0004; Bayer AG v. No Wholesaler SL – Ferran Dilmer Sitjà, WIPO Case No.

D2012-2492; Bayer AG v. Med Chem, Inc, WIPO Case No. D2013-1286; Bayer AG v. Maria Guadalupe Arellano Sanchez, WIPO Case No. D2014-1991; Bayer AG v. Volker Kammel, Whois Agent / Whois Privacy Protection Service, Inc., WIPO Case No. D2015-0540; Bayer AG v. huang cheng, WIPO Case No.

D2015-1932; Bayer AG v. Privacy Protection Service INC d/b/a PrivacyProtect.org. / Domain Admin, Private Registration Aktien Gesellschaft, WIPO Case No. D2015-1879; Bayer AG v. Cagri Savan, WIPO Case No. D2015-1573; Bayer AG v. Ahmet Ukulge, N, WIPO Case No. D2016-0801; Bayer AG v. Whois Agent, Whois Privacy Protection Service, Inc. / Syed Hussain, IBN7 Media Group, WIPO Case No. D2016-2354; Bayer AG v. Wuxi Yilian LLC, WIPO Case No. D2017-0269; Bayer AG v. Lim Sang Woon, WIPO Case No. 2017-0283; Bayer AG v. Ruud van der Linden, WIPO Case No. D2017-0328; Bayer AG v. Private Registration / Mark Nowak, WIPO Case No. D2017-1706)

The merger between the Complainant and Monsanto was first reported in the press on May 12, 2016 and they finally agreed on the merger on September 14, 2016.

The disputed domain names were registered on July 20, 2016. They are currently not used in connection with an active website and resolve to a warning page.

5. Parties’ Contentions

A. Complainant

The Complainant makes the following contentions:

(i) that the disputed domain names are identical or confusingly similar to the Complainant’s BAYER Trademark;

(ii) that the Respondent has no rights or any legitimate interests in respect of the disputed domain names; and

(iii) that the disputed domain names have been registered and are being used in bad faith.

The Complainant argues that the disputed domain names fully incorporate the Complainant’s well-known BAYER Trademark and are confusingly similar to such trademark. The Complainant further argues that it is well established that the specific Top-Level Domain is generally not an element of distinctiveness that can be taken into consideration when evaluating the identity or confusing similarity between the Complainant’s trademark and the disputed domain names (See Rollerblade, Inc. v. Chris McCrady, WIPO Case No.

D2000-0429).

The Complainant also argues that the fact that the disputed domain names include the third-party trademark MONSANTO does not eliminate the similarity between Complainant’s trademark and such domain names but strengthens the likelihood of confusion, as the at least one of the levels at each domain name in dispute directly refers to the Complainant and its intention to merge with the “Monsanto” company (See Bayer AG v. Lizhe, WIPO Case No. D2017-0126; Bayer AG v. Whois Agent Privacy Protection Service, Inc. / Syed Hussain, IBN7 Media Group, WIPO Case No. D2016-2354; Bayer AG v. Lim Sangf Woon, WIPO Case No. D2017-0283; Bayer AG v. Ruud van der Linden, WIPO Case No. D2017-0328; Bayer AG v. Wuxi Yilian LLC, WIPO Case No. D2017-0269).

Furthermore, the Complainant argues that the adjunction of the word “seeds” or “seed” does not eliminate the similarity between the Complainant’s trademark and the disputed domain names, nevertheless, the Internet user will clearly recognize the well-known BAYER Trademark as well as the name of the “Monsanto” company that the Complainant tends to acquire and that the additional word “seed(s)” gives the impression that the websites connected to the disputed domain names provide information on the Complainant’s intended merger with the “Monsanto” company and is therefore merely descriptive (See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless or otherwise) would not prevent a finding of confusing similarity under the first element”; Valero Enerrgy Corporation and Valero Marketing and Supply Company v. Valero Energy, WIPO Case No. D2017-0075; MacNeil Lehrer Productions, Inc. v. Swallowlane Holdings, Ltd, WIPO Case No. D2009-1465).

The Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain names. First of all, it argues that it is sufficient that the Complainant shows a prima facie case in order to shift the burden of production on the Respondent according to previous panel decisions (see Anti Flirt S.A. and Mr. Jacques Amsellem v. WCVC, WIPO Case No. D2000-1553; INTOCAST AG v. LEE DAEYOON, WIPO Case No. D2000-1467; Virgin Enterprises Limited v. KAP Computer Solutions Pvt. Ltd., WIPO Case No. D2013-0715).

The Complainant further argues that the BAYER Trademark is well-known and obviously connected with the Complainant and its products. Indeed, “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 the Complainant. And the Complainant has not licensed or otherwise permitted the Respondent to use any of its Trademark nor has permitted the Respondent to apply for or use any domain name incorporating the BAYER Trademark. According to these arguments, the Complainant considers that it constitutes a prima facie showing by the Complainant of absence of rights or legitimate interests in the disputed domain names on the part of the Respondent (See GGG Filmproduktion und Vertrieb e.K. v. E4 Group and Frank Jensen, WIPO Case No. D2006-1177; F. Hoffmann-La Roche AG v. Fred, WIPO Case No. D2006-0246; L’Association des centres ditributeurs E. Leclerc – ACD LEC v. CC, WIPO Case No. D2005-1071; Wal-Mart Stores Inc. v. Frank Warmath, WIPO Case No. DTV2008-0013; Janus Interantional Holding Co. v. Scott Rademacher, WIPO Case No. D2002-0201).

Furthermore, the Complainant argues that there is no evidence of, first, the Respondent’s use of, or demonstrable preparations to use the disputed domain names or a name corresponding to the disputed domain names in connection with a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy, and, second, of suggestion that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names or is commonly known by the disputed domain names.

The Complainant further argues that based on its high profile reputation worldwide, it is inconceivable that the Respondent registered the disputed domain names unaware of the Complainant and its rights in its highly distinctive and well-known BAYER Trademark. In addition, the fact that the Respondent registered the disputed domain names during the time when international media reported about the international merger between the Complainant and the MONSANTO Company clearly evidences that the Respondent was targeting the Complainant and its Trademark with the registration of the disputed domain names. Based on these arguments, the Complainant argues that the registration has been made in bad faith.

Furthermore, the Complainant argues that the fact that the disputed domain names are not actively used but passively held does not obstruct a finding of bad faith according to previous panel decisions (See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Bayer AG v. Gulam Mustafa, WIPO Case No. D2017-0820; Ladbroke Group Plc v. Sonoma International LDC, WIPO Case No.

D2002-0131). The Complainant argues that the circumstances in the case clearly justify the equation of passive holding and active use because the Complainant’s Trademark is well-known, the Respondent had provided no evidence whatsoever of any actual or contemplated good faith use and the combination of the words “Bayer” and “Monsanto” clearly refers to the Complainant. For this reason, the Complainant considers that from all of the circumstances, there does not appear to be any possible or conceivable good faith of the disputed domain names that would not be illegitimate.

Furthermore, the Complainant argues that the Respondent’s registrations of the disputed domain names prevents the Complainant from reflecting its trademark in a corresponding domain name and the Respondent has engaged in a pattern of such conduct, as set out in paragraph 4(b)(ii) of the Policy.

The Complainant further argues that previous Panel decisions have considered as bad faith domain name registration, one that includes a trademark that is obviously connected with the Complainant and its products (See America Online Inc. v. Chinese ICQ Network, WIPO Case No. D2000-0808; General Motors LLC v. desgate, WIPO Case No. D2012-0451; RapidShare AG, Christian Schmid v. Ali Private Company, Ali Kamran, WIPO Case No. D2010-0610).

The Complainant also argues that the Respondent’s use of the disputed domain names is meant to disrupt the Complainant’s business and that it is capable of reducing the number of visitors to the Complainant’s website, which may adversely affect the Complainant’s business and therefore constitutes bad faith (See BR IP Holder LLC v. Regsitrant [1966810]: Tech Administrator, WIPO Case No. D2009-1358; Estée Lauder Inc. v. esteelauder.com, estlauder.net and Jeff Hanna, WIPO Case No. D2000-0869).

Finally, the Complainant argues that the registration of the disputed domain names by the Respondent also constitutes an abusive threat hanging over the head of the Complainant, which also support the finding of bad faith (See Akbank Turk A.S.v. Mustafa Ismet Cinar, WIPO Case No. D2009-0642; Digital Platform Iletisim Hizmetler A.S. v. Digiturk Co., WIPO Case No. D2008-0111; Novo Nordisk A/S v. Service, Customer, WIPO Case No. D2009-0160).

For all the foregoing reasons, the Complainant argues the Respondent registered and is using the disputed domain names in bad faith.

B. Respondent

The Respondent argues that it acquired the eight disputed domain names fairly on July 2, 2016 and its ownership was acceptable to all applicable members of the Internet community. It further argues that both “Bayer” and “Monsanto” companies overlooked these disputed domain names as possible assets for their businesses, despite the reality that the merger had been under discussion for an extended period and had also been in the public domain via various media. The Respondent further argues that it took for over a year before “Bayer” company took any interest in them and that the Complainant only felt an interest to the disputed domain names after it sent a note to “Monsanto” company’s VP/Global Strategy on August 8, 2017.

The Respondent further argues that it had made no threats or demands, nor it is challenging Bayer’s right to either of these corporates names post-merger. It further argues that “Bayer” company is using this complaint to deprive it from its property and their marketing nor their legal department have made any effort to communicate with it. Despite the attitude of the Complainant, the Respondent recalls that the disputed domain names are and remain for sale.

The Respondent argues that the Complainant is using its reputation and its financial means to deprive the Respondent of its property illegally.

6. Discussion and Findings

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name are identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

The Complainant has submitted evidence of its prior rights on the “Bayer” sign in the form of Trademark and domain names.

The disputed domain names <bayermonsantoseed.com>, <bayermonsantoseeds.com>, <bayer-seed.com>, <bayerseed.com>, <bayer-seeds.com>, <bayerseeds.com>, <monsantobayerseed.com> and <monsantobayerseeds.com> consist of the Complainant’s BAYER Trademark, together with the descriptive term “seed” or “seeds” and the trademark MONSANTO.

First, the applicable Top-Level Domain in a domain name such as “.com” is viewed as a standard registration requirement and, as such, is disregarded under the confusing similarity test. RX America, LLC v. Matthew Smith, WIPO Case No. D2005-0540; Sanofi-Aventis v. US Online Pharmacies, WIPO Case No.

D2006-0582.

Second, the disputed domain names reproduce the Complainant’s Trademark in its entirety. The disputed domain names also reproduce the MONSANTO trademark owned by a third party in its entirety. This does not sufficiently distinguish the disputed domain names from the Complainant’s trademark. Moreover, the disputed domain names are intended to reflect the pending merger between the Complainant and “Monsanto” company. (See Société Air France v. Ali Ferhat Kurtulus Levent Mert/Erdem Yavuz, WIPO Case No. D2004-0759). Indeed, persons who have knowledge of the pending merger are likely to believe that the disputed domain names have a connection with the merged entity (See Albertis Infraestructuras, S.A. v. Syed Hussaind (PDAPB), WIPO Case No. D2006-1007).

Then, the adjunction of the word “seed” or “seeds” is not sufficient to eliminate the likelihood of confusion with the BAYER Trademark as it is a reflection of the Complainant’s activity and the Monsanto company activity and they intention to merge and is, therefore, a descriptive term. This is sufficient to find confusing similarity in the sense of the Policy. See Valero Energy Corporation and Valero Marketing and Supply Company v. Valero Energy, WIPO Case No. D2017-0075; see also M/s Daiwik Hotels Pvt. Ltd v. Senthil Kumaran S, Daiwik Resorts, WIPO Case No. D2015-1384; see also ERGO Versicherungsgruppe AG v. Idealist, WIPO Case No. D2008-0377.

Based on the evidence provided by the Complainant, decisions of prior UDRP panels cited above, and the Panel’s own analysis, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy has been met.

Consequently, the Panel finds that the requirements of paragraph 4(a)(i) of the Policy are fulfilled.

B. Rights or Legitimate Interests

Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:

(i) before any notice to it of the dispute, the respondent’s 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) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or

(iii) the respondent is 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.

Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in section 2.1 of the WIPO Overview 3.0 that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent comes forward with relevant evidence of rights or legitimate interests, the panel weighs all the evidence, with the burden of proof always remaining on the complainant.

The Respondent is not affiliated or connected to the Complainant in any way nor has it been authorized or licensed by the Complainant to register and use the disputed domain names which incorporates the Complainant’s Trademark. It does not appear to have any independent right to the disputed domain names. There is no evidence that the Respondent is commonly known by the disputed domain names. The disputed domain names resolve to an error page, which does not correspond to a bona fide offering of goods or services nor, in the circumstances of this case, to a legitimate noncommercial or fair use of the disputed domain names.

The Panel finds that the Complainant has made out a prima facie case. The Respondent has filed a response but its response does not target any of the UDRP elements, thus, the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the disputed domain names.

The Panel also holds that on regard on the facts, the Respondent cannot rely on the so-called “Oki Data test” set out in Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903, given that the disputed domain names are being used to point to an error page. In light of this fact, the Respondent cannot be said to be making a legitimate noncommercial or fair use of the disputed domain names within the meaning of the Paragraph 4(c)(iii) either.

For all the foregoing reasons, this Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii).

C. Registered and Used in Bad Faith

Pursuant to the Policy (paragraph 4(a)(iii)), the Complainant must show that the Respondent registered and is using the disputed domain name in bad faith.

The Panel finds that the Respondent must have been aware of the Complainant and its reputation in the BAYER Trademark at the time the Respondent registered the disputed domain names. Indeed, the Respondent, in its response admitted that he was aware of the Complainant’s reputation at the time of the registration of the disputed domain names. The Complainant has submitted evidence, which shows that the Respondent registered the disputed domain names long after the Complainant registered its trademark. According to the evidence filed by the Complainant, the Complainant has owned a registration for the BAYER trademark and the company name since at least the year 1863. It is suggestive of the Respondent’s bad faith in these particular circumstances that the BAYER Trademark, owned by the Complainant, was registered long before the registration of the disputed domain names (Sanofi-Aventis v. Abigail Wallace, WIPO Case No. D2009-0735). In the WIPO Overview 3.0, section 3.2.2 states as follows:

“Noting the near instantaneous and global reach of the Internet and search engines, and particularly in circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers), panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark.”

The fact that there is a clear absence of rights or legitimate interests coupled with no credible explanation for the Respondent’s choice of the disputed domain names is also a significant factor to consider (as stated in section 3.1.1 of the WIPO Overview 3.0). The disputed domain names fall into the category stated above and the Panel finds that registration is in bad faith.

Moreover, the fact that the Respondent registered the disputed domain names only in the intention to offer it to sale to the Complainant, aware of its reputation, and keep these domain names only in the aim to offer it for sale to the Complainant it constitutive of a registration and a use in bad faith as consider by the WIPO Overview 3.0, section 3.1. The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found (See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003). The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of another (See Match.com, LP v. Bill Zag and NWLAWS.ORG, WIPO Case No. D2004-0230; Michael Patrick Lynch v. Steve Nicol (Stephen Joel Nicol), WIPO Case No. D2015-0933).

The “Bayer” sign does not have any signification in English and is distinctive, thus, it refers directly and only to the Complainant’s Trademark. There is no obvious reason, nor has the Respondent offered an explanation, for the Respondent to register a domain name that combines a reproduction of the Complainant’s Trademark in its entirety and the adjunction of a descriptive word as well as a third-party trademark except there was an intention to create a likelihood of confusion between the disputed domain names and the Complainant’s BAYER Trademark.

The disputed domain name is confusingly similar to the Complainant’s trademark. Previous UDRP panels have found that “[a] likelihood of confusion is presumed, and such confusion will inevitably result in the diversion of Internet traffic from the Complainant’s site to the Respondent’s site” (Edmunds.com, Inc. v. Triple E Holdings Limited, WIPO Case No. D2006-1095). To this end, prior UDRP panels have established that attracting Internet traffic by using a domain name that is identical or confusingly similar to a registered trademark may be evidence of bad faith under paragraph 4(b)(iv) of the Policy.

Furthermore, there is no active use of the disputed domain names as it refers to an error page. In light of the lapse of time since its registration by the Respondent and the circumstances of the case, the Panel considers it is indicative of its intention to hold the disputed domain names in bad faith. There are several cases, of which Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 and Novo Nordisk A/S v. CDMS Invest, WIPO Case No. D2012-0676 are an example, where the so-called “passive holding” of a domain name has been held to constitute bad faith use within the meaning of paragraph 4(a)(iii) of the Policy.

Ultimately, the evidence reveals that the Respondent has taken advantage of the Complainant’s BAYER Trademark to intentionally attempt to attract Internet users for commercial gain by creating a likelihood of confusion with the Complainant’s trademark as to source, sponsorship, affiliation or endorsement of the Respondent’s websites. As held in recent UDRP decisions, involving similar circumstances namely Aktiebolaget Electrolux v. Muneer Mohamed of Cairo, WIPO Case No. D2015-0874 and Aktiebolaget Electrolux v. eletroluxmedellin.com, Domain Discreet Privacy Service / Luis Rincon, supra such conduct of deliberately misleading and diverting Internet users is undoubtedly evidence of bad faith registration and continued bad faith use.

Accordingly, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith under paragraph 4(a)(iii) of the Policy.

7. Decision

Although the disputed domain names incorporate the Complainant’s Trademark and the third party trademark MONSANTO, as the Complainant company and the third party company Monsanto intend to merge, the transfer of the disputed domain names to the Complainant is an appropriate remedy here. If the Complainant and Monsanto company ultimately do not merge then Monsanto Company would have the same recourse to a UDRP proceeding or court action that the Complainant had in this proceeding (See Chevron Corporation v.Young Wook Kim, WIPO Case No. D2001-1142; Bayer AG v. Wuxi Yilian LLC, WIPO Case No. D2017-0269; Sanofi-Synthelabo v. Nicki On, WIPO Case No. D2003-0871; Aventis SA, Aventis Pharma SA. v. Nicki On, WIPO Case No. D2003-0899).

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 names <bayermonsantoseed.com>, <bayermonsantoseeds.com>,

<bayer-seed.com>, <bayerseed.com>, <bayer-seeds.com>, <bayerseeds.com>, <monsantobayerseed.com> and <monsantobayerseeds.com> be transferred to the Complainant.

Nathalie Dreyfus
Sole Panelist
Date: March 15, 2018