Bayer AG v Will Peter, Williams Plc, Manager

WIPO Case No. D2024-0426

ARBITRATION
AND
MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

Bayer AG v. Will Peter, Williams Plc, Manager

Case No. D2024-0426

1. The Parties

The Complainant is Bayer AG, Germany, represented by pm.legal, Germany.

The Respondent is Will Peter, Williams Plc, Manager, United States of America.

2. The Domain Name and Registrar

The disputed domain name <bayeer.com> is registered with NameCheap, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 30, 2024. connection with the disputed domain name. On January 30, 2024, the Registrar transmitted by email to the Center its verification response disclosing the registrant and contact information for the disputed domain name which differed from the named Respondent (Redacted for Privacy, Privacy service provided by Withheld for Privacy ehf) and contact information in the Complaint. The Center sent an email communication to the Complainant on February 5, 2024, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on February 5, 2024.

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 the Respondent of the
Complaint, and the proceedings commenced on February 7, 2024. In accordance with the Rules, paragraph
5, the due date for Response was February 27, 2024. The Respondent did not submit any response.

Accordingly, the Center notified the Respondent’s default on February 28, 2024.

The Center appointed Daniel Kraus as the sole panelist in this matter on March 7, 2024. 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.

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4. Factual Background

The Complainant is one of the world’s leading chemical and health care companies, which has its headquarters in Leverkusen, Germany.

The Complainant is the owner of about 700 registrations and pending applications of the wordmark

“BAYER”. Amongst others:

- International trademark Registration BAYER No. 1462909 registered on November 28, 2018,

for the following goods/services 1, 3, 5, 9, 10, 31, 35, 41, 42, and 44;

- International trademark Registration BAYER No. 1476082 registered on December 10, 2018, for the

following goods/services 7, 8, 11, 16, 20, 24, 25, 28, 30, 32, 37, 38, 39, 40, 43, and 45.

Moreover, the Complainant has also established a strong presence on the Internet; it is the owner, among
others, of the following domain names reflecting its trademark: <bayer.com>, <bayer.co.nz>,
<bayer.com.au>, <bayer.co>.and <bayer.us>.

The disputed domain name was registered on October 5, 2023 and at the time of filing was not used in connection with an active website; it has been used for an alleged fraud, described below.

5. Parties’ Contentions

A. Complainant

The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the disputed domain name.

Notably, the Complainant contends that the disputed domain name is almost identical to the Complainant’s trademark BAYER which has become a distinctive identifier of its service offerings.

The Complainant argues that the only element of difference between the disputed domain name and the Complainant’s trademark is the double letter “e” in the disputed domain name. This element can mislead Internet users, since the disputed domain name is nearly identical to the Complainant’s trademark.

The Complainant also contends that the Respondent has no rights or legitimate interest in respect of the domain name. The Respondent is not affiliated with the Complainant and there is no evidence to suggest that the Respondent has registered the disputed domain name to advance legitimate interests. The Complainant has never licensed or otherwise permitted the Respondent to use its trademark or to register any domain name including its trademark.

Finally, the Complainant alleges that the Respondent has registered the disputed domain name in bad faith.
BAYER is obviously not a word a domain name registrant would legitimately choose unless seeking to create
an impression of association with the Complainant. Besides, the disputed domain name is being used in
connection with fraudulent emails and therefore in bad faith. The Complainant became aware that the
disputed domain name has been fraudulently used to send an email to one of the Complainant’s customers
in the United Kingdom. The Respondent uses the email syntax <first name>.<last name>[email protected]
in the email. The Complainant also uses email addresses at [email protected] for external employees. In the
email signature of the fraudulent email, the sender uses the Complainant’s domain name <bayer.com> and

the name of an employee of the Complainant.

The Complainant requests that the disputed domain name be transferred to it.

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B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Under paragraph 4(a) of the Policy, to succeed the Complainant must prove that:

(i) the disputed 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 disputed domain name; and

(iii) the disputed domain name was registered and is being used in bad faith.

These elements are discussed in turn below. In considering these elements, paragraph 15(a) of the Rules provides that the Panel shall decide the Complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the Panel deems applicable.

A. Identical or Confusingly Similar

It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant’s trademark and the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”), section 1.7.

In the present case, the disputed domain name is confusingly similar to the Complainant’s registered well- known trademark BAYER. The disputed domain name incorporates the BAYER trademark in its entirety, to which a second letter “e” has been added. It is understood that when a disputed domain name fully incorporates a complainant’s mark, it is indicative of the disputed domain name being identical or confusingly similar. The addition of the last letter “e” to the Complainant’s trademark, does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark. See Skyscanner Limited v. Domain Admin, Whois Privacy Corp, WIPO Case No. D2019-2881. See also WIPO Overview 3.0, section 1.9 on misspellings.

Therefore, the Panel finds that the Complainant has proven that the disputed domain name is confusingly similar to the Complainant’s mark.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name.

Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the difficult 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 (although the burden of proof always remains on the complainant). If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1.

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There is nothing in the available case file to suggest that the Respondent is in any way affiliated with the seek registration of any domain name incorporating its trademarks.

The Respondent has not made any submissions or any demonstrations that it has rights or legitimate interests in the disputed domain name.

In the present case, the Panel finds no evidence that the Respondent has used or undertaken any demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. Likewise, no evidence has been adduced that the Respondent has been commonly known by the disputed domain name; nor, for the reasons mentioned above, is the Respondent making a legitimate noncommercial or fair use of the disputed domain name.

The Panel concludes, noting that the Respondent lacks any rights or legitimate interests in the disputed domain name, that the second element of the Policy has been met.

C. Registered and Used in Bad Faith

The Panel notes that, for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular, but without limitation, that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith.

In the present case, the Complainant contends that the Respondent’s registration and use of the disputed domain name is in bad faith, which the Respondent did not rebut. On the evidence adduced, it is inconceivable that the registrant of the disputed domain name was unaware of the Complainant’s name, trademark, reputation, and goodwill when the disputed domain name was registered. In The Nasdaq Stock Market, Inc., v. Hamid Reza Mohammad Pouran, WIPO Case No. D2002-0770, the panel held: “The Respondent knew or should have known of the existence of the Complainant, [as] the Complainant’s trademark [was] widely publicized globally and constantly featured throughout the Internet, and thus the Panel decides that the disputed domain names were registered in bad faith”. This is also the case here.

Besides, the Complainant has proven to the satisfaction of this Panel that the disputed domain name has been used to perpetuate a fraud and hence, in bad faith. The evidence of forged emails sent to a client of the Complainant as well as the evidence shown in the email address, as well as in the signature of the email

referring to the Complainant’s main domain name <bayer.com> demonstrate a clear intent of the
Respondent to attract Internet users, for commercial gain, by creating a likelihood of confusion with the

Complainant’s trademarks and domain names (Policy, paragraph 4(b)(iii)).

Accordingly, pursuant to paragraph 4(b) of the Policy, this Panel finds that disputed domain name was
registered and has been used in bad faith by the Respondent. On this basis the Panel finds that the

Complainant has satisfied the third element of the Policy, paragraph 4(a)(iii).

7. Decision

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 <bayeer.com> be transferred to the Complainant.

/Daniel Kraus/ Daniel Kraus Sole Panelist Date: March 21, 2024