{ "case_number": "CAC-ADREU-007458", "time_of_filling": null, "domain_names": [ "bayer-monsanto.eu" ], "case_administrator": "Aneta Jelenová (Case admin)", "complainant": [ "Petra Lorenz (Bayer AG)" ], "complainant_representative": null, "respondent": [ "D. Otten" ], "respondent_representative": null, "factual_background": "The Complainant was established in Germany in 1863 and is now a leading global company in the field of health care, nutrition and plant protection. This company began manufacturing pharmaceutical products in 1888 and has sold such products under the BAYER trade mark ever since that time.\r\n\r\nThe Complainant owns the trade mark BAYER, which is registered on a global basis, including in the Netherlands where the Respondent is based. The Complainant further owns a number of domain names, which consists of or includes the BAYER trademark such as and .\r\n\r\nAmong others, the Complainant is the owner of the EU word trademark, reg. No. 011628625, for the term BAYER, registered on 19 August 2013,in respect of goods and services in 13 classes.", "other_legal_proceedings": "None", "discussion_and_findings": "According to article 21,1 of the Commisssion Regulation (EC) No 874\/2004 and paragraph B 11 (d) of the ADR Rules a registered domain name shall be subject to revocation provided that each of the three following elements are satisfied: \r\n\r\n(A) The domain name is identical or confusingly similar to a trademark or service     \r\n     mark in which the Complainant has rights that are recognised or established by national  a   \r\n     and\/or Community law;  and \r\n(B) Respondent has no rights or legitimate interests in respect of the domain name;  or \r\n(C) The domain name has been registered or is being used in bad faith. \r\n\r\nThe Respondent is in default and paragraph B 10 (a) of the ADR Rules states that the Panel may consider the failure to comply with the time limits for filing a Response as grounds to accept the claims of the Complainant. Paragraph B 10 (b) of the ADR Rules further states that if a party does not comply with any provision of, or requirement under, the Rules or the Supplemental Rules or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate. \r\n\r\n\r\n1 Identical or confusingly similar to the Complainant´s trademark\r\n\r\nThe disputed domain name consists of the Complainant’s BAYER mark and the third-party trade mark MONSANTO. The Panel finds that the Complainant’s mark is a dominant and thus identifiable part of in the disputed domain name and that the addition of the MONSANTO mark does not distinguish the disputed domain name from the Complainant’s trade mark. The Panel agrees with the Panel in WIPO Case D2016-2354 Bayer AG v. Syed Hussein regarding the domain name that \"the confusion may, in fact, be increased by the addition of MONSANTO as the Complainant’s intention to merge with the MONSANTO pharmaceutical company have been reported in the press\".\r\n\r\nSince the inclusion of the TLD denomination “.eu” does not avoid confusing similarity of domain names and trademarks the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. \r\n\r\n2\r\nIt is clear from the facts of the case that the Complainant has not licensed or otherwise permitted the Respondent to use its trademark and given the circumstances of this case, the Panel is of the opinion that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.\r\n \r\nThe Respondent has not rebutted this by way of a formal response or otherwise and the way that the Respondent has been “using” the disputed domain name, see immediately below, does not support a finding of rights or legitimate interests.\r\n \r\nConsequently the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. \r\n\r\n\r\n3\r\nGiven the circumstances of the case, namely that the disputed domain name was registered immediately after the publication of the possible mergers between the Complainant and the company Monsanto, and given the extent of use of the Complainant’s trademark and the distinctive nature of the mark, it is inconceivable to the Panel that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant’s mark. Further, the Panel finds that the Respondent could not have been unaware of the fact that it chose a domain name which could attract Internet users in a manner that is likely to create confusion for such users.\r\n \r\nThe Panel therefore finds that the disputed domain name was registered in bad faith.\r\n \r\nThe disputed domain name is not actively used. However, as first stated in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000‑0003, and repeated in many subsequent decisions under the UDRP: “the concept of a domain name ‘being used in bad faith’ is not limited to positive action; inaction is within the concept. That is to say, it is possible, in certain circumstances, for inactivity by Respondent to amount to the domain name being used in bad faith.” This line of thinking has also been followed by a number, albeit not all, Panels in disputes under the .eu TLD, see to this effect Part V.3 in the \"CAC .EU Overview 2.0\".\r\n\r\nThe Panel finds that the Respondent’s lack of bona fide use of this disputed domain name is likely to disrupt the business of the Complainant since it prevents the Complainant from reflecting their reputed trademark in a corresponding “.eu” domain name. Further, given the world-wide fame of the Complainant’s BAYER mark, it is immediately inconceivable that the Respondent will be able to use the disputed domain name for any purpose that would not be infringing the Complainant’s rights.\r\n \r\nNoting that the disputed domain name incorporates the particular trademark, BAYER, that no Response has been filed, and that there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain name, and considering all the facts and evidence, the Panel finds that all the requirements of paragraph 21, 1 of the Commisssion Regulation (EC) No 874\/2004 and of paragraph B 11(d) of the ADR Rules are met.", "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that the domain name BAYER-MONSANTO.EU be transferred to the Complainant", "panelists": [ null ], "date_of_panel_decision": "2017-07-07 00:00:00", "informal_english_translation": "I. Disputed domain name: BAYER-MONSANTO.EU\r\n\r\nII. Country of the Complainant: GERMANY , country of the Respondent: THE NETHERLANDS\r\n\r\nIII. Date of registration of the domain name: 14 September 20167\r\n\r\nIV. Rights relied on by the Complainant (Art. 21 (1) Regulation (EC) No 874\/2004) on which the Panel based its decision:\r\n \r\n 1. Word CTM, reg. No. 011628625, for the term BAYER, registered on 19 August 2013,in respect of goods and services in 13 classes \r\n \r\n\r\nV. Response submitted: No\r\n\r\nVI. Domain name is confusingly similar to the protected rights of the Complainant\r\n\r\nVII. Rights or legitimate interests of the Respondent (Art. 21 (2) Regulation (EC) No 874\/2004):\r\n 1. No\r\n 2. Why: The Complainant has not licensed nor authorized the Respondent to use its trademark in the disputed domain name. Further there is no evidence that the Respondent is making a legitimate non-commercial or fair use of the disputed domain name. \r\n\r\nVIII. Bad faith of the Respondent (Art. 21 (3) Regulation (EC) No 874\/2004):\r\n 1. Yes\r\n 2. Why: the disputed domain names was registered immediately after press reports of the possible merger between the companies BAYER and MONSANTO\r\n\r\nIX. Other substantial facts the Panel considers relevant: The Respondent did not file a Response and holds the disputed domain name without any active use.\r\n\r\nX. Dispute Result: Transfer of the disputed domain name\r\n\r\nXI. Procedural factors the Panel considers relevant: None.\r\n\r\nXII. Is Complainant eligible? Yes", "decision_domains": [], "panelist": null, "panellists_text": null }