The Complainant is Bayer AG of Leverkusen, Germany, represented by Bettinger Schneider Schramm, Germany.
The Respondent is WebContents, Inc (www.webcontents.com of Illinois, United States of America.
The disputed domain name <bayermedical.com> is registered with Dotster, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 14, 2009. On April 15, 2009, the Center transmitted by email to Dotster, Inc. a request for registrar verification in connection with the disputed domain name. On April 15, 2009, Dotster, Inc. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 20, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was May 10, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 11, 2009.
The Center appointed Rodrigo Azevedo as the sole panelist in this matter on May 22, 2009. 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.
The Complainant is a global enterprise with core competencies in the fields of health care, nutrition and high-tech materials.
The Complainant's trademark BAYER is registered in many countries, since 1966. Those registrations cover an extensive range of goods and services, including: pharmaceutical preparations, chemicals, waste water treatment chemicals for industrial use, pigments, synthetic and artificial resins, coatings, plastics, greases, lubricants, rubber, synthetic rubber and rubber chemicals for use in the automotive, tire, adhesives, fibers, yarns, threads, agricultural chemicals, pesticides, insecticides, fungicides, herbicides and cleaning materials industry.
The Complainant and its subsidiaries also own hundreds of domain name registrations containing the mark BAYER, having a strong presence on Internet.
The Respondent registered the domain name <bayermedical.com> on April 13, 2006. The Respondent uses the disputed domain name in connection with a pay-per-click (“PPC”) parking page.
When the Panel accessed the website at the disputed domain name after receipt of the case file, it showed a list of links for medical equipment and products, diabetes supplies and others.
The Complainant makes the following contentions.
(i) The disputed domain name is confusingly similar to the Complainant's mark BAYER as it incorporates this mark in its entirety. The addition of the word “medical” does not eliminate the similarity between the Complainant's trademark and the disputed domain name, as “medical” is just a descriptive expression used to indicate the main field of Complainant's business;
(ii) The Respondent has no rights or legitimate interests in respect of the domain name. The Complainant has not licensed or permitted the Respondent to use any of its trademarks. The domain name is not used in connection with a bona fide offering of goods or services, especially because the corresponding website is a parking page, used to earn pay-per-click revenues for redirecting Internet users to third parties' websites. There is no evidence which suggest that the Respondent is commonly known by said domain name.
(iii) The Respondent has registered and is using the domain name in bad faith. The Respondent does not conduct any legitimate business activity and was aware of Complainant's rights in the trademark BAYER. The nature of the Respondent's website makes it clear that its purpose is, by creating a likelihood of confusion with the Complainant's trademark, to divert traffic intended for the Complainant's website to its own, with the intent to obtain click-through revenues.
The Respondent did not reply to the Complainant's contentions.
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant shall prove the following three elements:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) The 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.
Regardless of the fact the Respondent failed to submit a formal reply, the Panel shall consider whether the requirements of the Policy have been met.
The Complainant's Exhibit 4 shows registrations of the BAYER trademark since 1966. The Complainant began manufacturing and marketing pharmaceutical products under the BAYER trademark since 1888.
The Panel has no doubt that the BAYER trademark is connected with the Complainant and has reached a well-known status worldwide.
The trademark BAYER is wholly encompassed within the disputed domain name.
Although the disputed domain name also contains the descriptive word “medical”, this is not sufficient to refute the confusingly similar requirement under paragraph 4(a)(1), because it just describes the main market of the Complainant's products.
In a previous UDRP case, concerning the domain names <buy-xenical-000.biz> and <order-xenical-a.biz>, the panel stressed that “it is now well-established that the adoption of a trademark in its entirety as a domain name together with other descriptive material does not generally suffice to enable a respondent to overcome an allegation that the domain name is distinguishable from the Trademark in question” (F. Hoffmann-La Roche AG v. sysadmin admin, balata.com ltd., WIPO Case No. D2008-0954).
Therefore, the Panel finds the disputed domain name to be confusingly similar to the Complainant's trademark.
Paragraph 4(c) of the Policy provides some examples without limitation where a respondent can demonstrate a right or legitimate interest in a domain name by showing one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use 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; 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 at issue.
Based on the Respondent's default and on the prima facia evidence in the Complaint, it is presumed that the above circumstances are not present in this particular case and that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant has not licensed the trademark to the Respondent.
The Respondent is not commonly known by the domain name, which includes a well known trademark.
The use of the domain name as a pay-per-click parking page cannot be understood to be noncommercial or fair.
Consequently, the Panel is satisfied that Complainant has proven the second element of the Policy.
Paragraph 4(b) of the Policy states that the following circumstances in particular, but without limitation, shall be evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent 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 the respondent has engaged in a pattern of such conduct; or
(iii) The respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
The Panel has had little difficulty in concluding that the circumstances referred on paragraph 4(b)(iv) have occurred in the present case.
The disputed domain name encompasses the Complainant's trademark BAYER (together with the descriptive word “medical”) and is being used as a pay-per-click landing page, displaying sponsored links for third party websites that offer competing products. Therefore, in doing so, the Respondent:
(i) creates a likelihood of confusion with the Complainant's trademark;
(ii) obtains click-trough revenue from this practice; and
(iii) deprives the Complainant from selling its products to someone who is clearly looking for it and, at the same time, promotes products offered by competitors.
For reference on the subject see Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415.
Accordingly, the Panel finds that the Complainant has proved that the Respondent registered and is using the disputed domain name in bad faith, satisfying the third element of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <bayermedical.com> be transferred to the Complainant.
Rodrigo Azevedo
Sole Panelist
Dated: June 5, 2009