The Complainant is Bayer AG, Germany, represented by BPM Legal, Germany.
The Respondent is wenhua qiu, qiuwenhua, China.
The disputed domain name <bayerchicos.com> is registered with Interlakenames.com LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2019. On September 17, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 24, 2019, 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 September 27, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 17, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 18, 2019.
The Center appointed Daniel Peña as the sole panelist in this matter on November 1, 2019. 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 healthcare, nutrition and plant protection. It is headquartered in Germany and is 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 Complainant began its activities in 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 subgroups, manufactures and sells products globally, including human pharmaceutical and medical care products, veterinary products, diagnostic products, and agricultural chemicals.
In China, where the Respondent is located, the Complainant conducts business through its local subsidiary BAYER Corporation under the name “Bayer (China) Limited” and operates a website at “www.bayer.com.cn”.
The Complainant is the owner of about 700 registrations and pending applications of the word mark BAYER, including numerous registrations in China, the earliest of which are listed below:
- Chinese trademark No. 76013, designating products in international class 1, registered on August 2, 1977;
- Chinese trademark No. 76014, designating products in international class 2, registered on August 2, 1977;
- Chinese trademark No.76022, designating products in international class 3, registered on August 2, 1977;
- Chinese trademark No. 76011, designating products in international class 10, registered on August 2, 1977.
The Complainant has a strong presence on the Internet. The Complainant and its subsidiaries own hundreds of domain name registrations containing the BAYER trademark, including <bayer.com> and <bayer.com.cn>. Due to the Complainant’s global online use of its BAYER trademark, such mark is obviously and solely connected with the Complainant. A search for the query “bayer” at the website “www.baidu.com” shows that nearly all of the search results refer to the Complainant or its subsidiaries.
The Respondent registered the disputed domain name on June 13, 2019.
The disputed domain name is currently used in connection with an active website, which advertises lottery services.
The Complainant contends that the disputed domain name fully incorporates the well-known BAYER trademark and is confusingly similar to it. Confusing similarity is said to be a given where a trademark is recognizable as such within the domain name, and in this case any Internet user would easily recognize the BAYER trademark. The word “Chicos” is merely generic and does not eliminate the similarity between the Complainant’s trademark and the disputed domain name.
As to rights and legitimate interests, the Complainant points out that it is sufficient that it submits prima facie evidence in order to shift the burden to the Respondent. It contends that the BAYER trademarks are well‑known and obviously connected with the Complainant and its products. “Bayer” is not a word any market participant or other domain name registrant would legitimately choose unless seeking to create an impression of an association with the Complainant.
The Complainant also states that it has not licensed or otherwise permitted the Respondent to use any of its trademarks and has not permitted it to apply for or use any domain name incorporating the BAYER trademarks. These circumstances are said to constitute a prima facie showing by the Complainant of the absence of rights or legitimate interests in the disputed domain name on the part of the Respondent.
According to the Complainant, the Respondent is using the disputed domain name for an active website, which advertises different gambling providers. The Complainant also points out that there is no evidence which suggests that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name or is commonly known by the disputed domain name or the expression “bayerchicos”.
The Respondent did not reply to the Complainant’s contentions.
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel holds that the disputed domain name <bayerchicos.com> is confusingly similar to the Complainant’s trademarks. The Respondent’s incorporation of the Complainant’s trademark in full in the disputed domain name is evidence that the disputed domain name <bayerchicos.com> is confusingly similar to the Complainant’s marks.
Mere addition of the term “Chicos” as suffix to the Complainant’s mark fails to prevent a finding of confusing similarity. The addition of other terms (whether descriptive, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element. The nature of such term(s) may however bear on assessment of the second and third elements. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). In particular, this Panel finds, similarly to other UDRP panels, that the addition of the generic Top-Level Domain “.com” to the disputed domain names does not constitute an element so as to avoid confusing similarity for purposes of the Policy (see: Carlsberg A/S v. Xu Guo Xing, WIPO Case No. D2017-0301; Philip Morris USA Inc. v. Shimei Wang, WIPO Case No. D2016-2517; Livelle v. Martijn Noordermer, WIPO Case No. D2016-2524).
The Panel is satisfied that the disputed domain name <bayerchicos.com> is confusingly similar to the Complainant’s mark and the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
Pursuant to paragraph 4(a)(ii) of the Policy, the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant bears the burden of proof in establishing this requirement. In view of the difficulties inherent in proving a negative and because the relevant information is mainly in the possession of the Respondent, it is enough for the Complainant to establish a prima facie case which, if not rebutted by sufficient evidence from the Respondent will lead to this ground being set forth.
The Panel will now examine the Complainant’s arguments regarding the absence of rights or legitimate interests of the Respondent in connection with the disputed domain name.
The Respondent has no connection or affiliation with the Complainant and has not received any license or consent, express or implied, to use the Complainant’s trademarks in a domain name or in any other manner.
The Respondent did not submit a Response or attempt to demonstrate any rights or legitimate interests in the disputed domain name, and the Panel draws adverse inferences from this failure, where appropriate, in accordance with the Rules, paragraph 14(b).
Refraining from submitting a Response, the Respondent has brought to the Panel’s attention no circumstances from which the Panel could infer that the Respondent has rights or legitimate interests in the disputed domain name.
The Panel finds the Respondent has no rights or legitimate interests in respect of the disputed domain name and that paragraph 4(a)(ii) of the Policy is satisfied.
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a disputed domain name in bad faith:
(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant (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;
(ii) the 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 the respondent has engaged in a pattern of such conduct;
(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 website 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 the respondent’s website or location or of a product or service on its website or location.
In the Panel’s view a finding of bad faith may be made where the Respondent “knew or should have known” of the registration and/or use of the trademark prior to registering the disputed domain name. In this case, the widespread commercial recognition of the BAYER trademarks is such that the Respondent, must have had knowledge of the trademark before registering the disputed domain name.
The Respondent appears to have chosen the disputed domain name in order to deliberately attract Internet users to its website in the mistaken belief that it was the website of the Complainant, or otherwise linked to or authorized by the Complainant. That intention to attract Internet users is only reinforced by the lottery-related content of the Respondent’s site. As such, the Panel is satisfied that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or of the products on its website. Under paragraph 4(b)(iv) of the Policy, this circumstance shall be evidence of the registration and use of a domain name in bad faith.
The Panel concludes that the disputed domain name was registered and is being used 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 <bayerchicos.com> be transferred to the Complainant.
Daniel Peña
Sole Panelist
Date: November 9, 2019