WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bayer AG v. Withheld for Privacy Purposes, Privacy Service Provided by Withheld for Privacy ehf / Andrew Evera
Case No. D2021-4011
1. The Parties
Complainant is Bayer AG, Germany (hereinafter, “Complainant”), represented by BPM Legal, Germany.
Respondent is Withheld for Privacy Purposes, Privacy Service Provided by Withheld for Privacy ehf, Iceland / Andrew Evera, Canada (hereinafter, “Respondent.”)
2. The Domain Name and Registrar
The disputed domain name <bayer-pl.careers> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 1, 2021. On December 1, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 2, 2021, 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 Complainant on December 2, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on December 4, 2021.
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 Respondent of the Complaint, and the proceedings commenced on December 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 16, 2022. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 17, 2022.
The Center appointed M. Scott Donahey as the sole panelist in this matter on January 27, 2022. 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 is a global enterprise operating in the fields of healthcare, nutrition, and plant protection. Headquartered in Leverkusen, Germany, Complainant is listed on all German stock exchanges and is included in the DAX 40, consisting of the major German companies trading on the Frankfurt stock exchange.
The use of the trademark BAYER began in 1863, when Friedrich Bayer established the company in Germany. In 1881, the name was transferred to a stock corporation. The corporation began marketing pharmaceutical products in 1888 under the BAYER trademark and continues to do so today.
Complainant has over 250 affiliates and more than 115,000 employees worldwide, manufacturing and selling inter alia human pharmaceuticals and medical care products, diagnostic products, and agricultural chemicals. Complaint, Annexes 4 and 5.
Complainant owns approximately 700 trademark registrations for the word mark BAYER, such as International Trademark registration no. 1462909 BAYER registered on November 28, 2018. Complaint, Annex 6. Complainant also has registered hundreds of domain names containing the BAYER trademark, including <bayer.com> and <bayer.com.pl>. Complaint, Annex 7. Domain name panelists have found that given the widespread use and fame of Complainant’s BAYER trademark, a respondent can be found to have actual knowledge of the Complainant’s trademark at the time that it registered the domain name. See, e.g., Bayer Aktiengesellschaft v. Amaltea Impex SRL, WIPO Case No. D2005-0006.
Respondent registered the disputed domain name on October 19, 2021. Complaint, Annex 1. The disputed domain name is being used to resolve to a website which features pay-per-click advertising related to Complainant’s business. Complaint, Annex 9. The website expressly refers to Complainant and provides links to websites of Complainant’s direct competitors. Id. Complainant learned that the website to which the disputed domain name resolves is being fraudulently used to issue fake job offers in Complainant’s name in an attempt to obtain money from candidates for such jobs. Complaint, Annex 10. Respondent has previously been found to have used the domain name <cropscience-bayer.com> to issue job offers in Complainant’s name in an attempt to extort money from job candidates. Complaint, Annex 11.
5. Parties’ Contentions
Complainant asserts that the disputed domain name is confusingly similar to Complainant’s well-known mark. Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant argues that Respondent has registered and is using the disputed domain name in bad faith.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and,
(iii) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The disputed domain name consists of Complainant’s famous BAYER trademark followed by a dash and the letters “pl.” The letters “pl” is the country code for Poland. The Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
B. Rights or Legitimate Interests
While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the almost impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
In the present case Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Respondent has registered the disputed domain name to resolve to a website at which pay-per-click links to Complainant’s competitors can be found. Panels have repeatedly found such registration and use to be in bad faith. Further, Respondent appears to have used the disputed domain name in connection with a fraudulent email scheme. Thus, the Panel finds that Respondent has registered and is using the disputed domain name in bad faith.
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, <bayer-pl.careers>, be transferred to Complainant.
M. Scott Donahey
Date: February 7, 2022