Complainant is Bayer AG of Leverkusen, Germany, represented by BPM legal, Germany.
Respondent is Maria Guadalupe Arellano Sanchez of Gomez Palacio, Durango, Mexico.
The disputed domain name <bayerdemexico.com> is registered with Network Solutions, LLC (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 12, 2014. On November 12, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 13, 2014, the Registrar transmitted by email 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on November 18, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was December 8, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on December 9, 2014.
The Center appointed Lorelei Ritchie as the sole panelist in this matter on December 16, 2014. 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.
Complainant is a German-based global pharmaceutical company. According to the record and submissions, Complainant has over 250 affiliates and 113,000 employees world-wide, in all 5 continents, including in Mexico, where Respondent lists her address of record. Complainant has also provided evidence that it owns trademarks for the term "Bayer" with use dating back to the nineteenth century. Complainant owns, among its many other trademark registrations for BAYER in word form, Mexican Registration Nos. 17215 (Registered in 1919), 477898 (Registered in 1994), and 139923 (Registered in 2002), as well as registrations for BAYER, and design, including Mexican Registration Nos. 30372 (Registered in 1929), 29896 (Registered in 1929), 1014365 (Registered in 2007), and 1009453 (Registered in 2007).
Complainant owns various registrations for domain names, including <bayer.com>, from which it hosts a website which provides consumers information about its pharmaceutical and other goods and services. Complainant notes that "In Mexico, where Respondent is located, the Complainant has a local subsidiary trading under the name Bayer de Mexico, S.A. de C.V." Complainant has provided information pertaining to that company, including pages from the website associated with the domain name <bayer.com.mx>. Complainant has further provided copies of over a half dozen UDRP cases that have found Complainant's BAYER marks to be well-known. This Panel finds those decisions to be well-reasoned, and the conclusion applicable in this case.
The disputed domain name <bayerdemexico.com> was registered by Respondent on October 2, 2014. Respondent has no affiliation with Complainant. Respondent has set up a website associated with the disputed domain name, which includes use of Complainant's trademark and which also includes information about used cars. Complainant has not authorized any activities by Respondent, nor any use of its trademarks thereby.
Complainant contends that (i) the disputed domain name <bayerdemexico.com> is identical or confusingly similar to Complainant's trademarks; (ii) Respondent has no rights or legitimate interests in the disputed domain name; and (iii) Respondent registered and is using the disputed domain name in bad faith.
Respondent did not reply to Complainant's contentions.
This Panel must first determine whether the disputed domain name <bayerdemexico.com> is identical or confusingly similar to a trademark or service mark in which Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. The Panel finds that it is. The disputed domain name directly and fully incorporates Complainant's well-known registered trademark, BAYER, and merely adds the descriptive wording "de" (the Spanish word for "of") and "Mexico." The Panel finds that the added words would be perceived by Internet users as descriptive of a website where they could find information about sales of Complainant's BAYER products in Mexico.
This is especially so since Complainant has a local subsidiary trading under the name "Bayer de Mexico, S.A. de C.V," with a corresponding website at the domain name <bayer.com.mx>.
Numerous UDRP panels have agreed that supplementing or modifying a trademark with generic or descriptive words does not make a domain name any less identical or confusingly similar for purposes of satisfying this first prong of paragraph 4(a)(i) of the Policy. See, for example, Microsoft Corporation v. StepWeb, WIPO Case No. D2000-1500 (transferring <microsofthome.com>); General Electric Company v. Recruiters, WIPO Case No. D2007-0584 (transferring <ge-recruiting.com>); CBS Broadcasting, Inc. v. Y2K Concepts Corp., WIPO Case No. D2000-1065 (transferring <cbsone.com>).
This Panel therefore finds that the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights, in accordance with paragraph 4(a)(i) of the Policy.
The Policy provides some guidance to respondents on how to demonstrate rights or legitimate interests in a domain name in a UDRP dispute. For example, paragraph 4(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name "in connection with a bona fide offering of goods or services"; (ii) demonstration that Respondent has been "commonly known by the domain name"; or (iii) "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 did not respond to the allegations in the Complaint, however, and no evidence has been presented to this Panel that might support a claim of Respondent's rights or legitimate interests in the disputed domain name. Rather, as mentioned in Section 4 of this Panel's decision, Respondent has set up a website associated with the disputed domain name, apparently to divert Internet users for Respondent's own financial gain.
Therefore, this Panel finds that Complainant has provided sufficient evidence of Respondent's lack of rights or legitimate interests in the disputed domain name, in accordance with paragraph (4)(a)(ii) of the Policy which Respondent has not rebutted.
There are several ways that a complainant can demonstrate that a domain name was registered and used in bad faith. For example, paragraph 4(b)(iv) of the Policy states that bad faith can be shown where "by using the domain name [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [respondent's] website or location or of a product or service on [the] web site or location". As noted in Section 4 of this Panel's decision, Respondent has set up a website associated with the disputed domain name, which includes use of Complainant's trademark, and from which Respondent sells or offers to sell used car services. Hence, Respondent is trading on the goodwill of Complainant's trademarks to attract Internet users, presumably for Respondent's own commercial gain.
Furthermore, considering the high degree of renown of Complainant's trademark around the world, including in Mexico, where Complainant has a subsidiary, and where Respondent lists her address of record, and the fact that the website associated with the disputed domain name refers to those products, it may be presumed that Respondent was aware of Complainant's rights in Complainant's marks when registering the disputed domain name. Accordingly, this, too, evidences bad faith by Respondent.
Therefore, this Panel finds that Respondent registered and used the disputed domain name in bad faith, in accordance with paragraph 4(a)(iii) 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 disputed domain name <bayerdemexico.com> be transferred to Complainant.
Lorelei Ritchie
Sole Panelist
Dated: December 23, 2014