Administrative panel decision bayer 04 Leverkusen Fußball GmbH V. James McAvoy




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ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

Bayer 04 Leverkusen Fußball GmbH v. James McAvoy

Case No. D2015-1005



1. The Parties

The Complainant is Bayer 04 Leverkusen Fußball GmbH of Leverkusen, Germany, represented by BPM Legal, Germany.


The Respondent is James McAvoy of Bristol, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).


2. The Domain Name and Registrar

The Disputed Domain Name is registered with Key-Systems GmbH dba domaindiscount24.com (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 15, 2015. On June 15, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 23, 2015, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 24, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was July 14, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 15, 2015.
The Center appointed Anders Janson as the sole panelist in this matter on July 27, 2015. 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.

4. Factual Background

The Complainant is one of the oldest and most prestigious German football clubs. It was established in 1904 as a sports club for workers of the company Friedrich Bayer and Co. (today Bayer AG, a global enterprise with core competencies in the fields of health care, nutrition and high-tech materials) and is called “Bayer 04 Leverkusen” since 1928. It has been playing in the highest German football league for over 30 years and won several national and international titles in the past, inter alia the German Trophy in 1993 and the UEFA Trophy in 1988. According to a study of the Technical University of Braunschweig, Germany, issued in 2014, the Complainant ranks under the Top 10 of the most valuable trademarks of German football clubs and has a degree of awareness of 91.84 %. The Complainant’s trademark BAYER 04 therefore is well-known. The Complainant provides information on its activities at “www.bayer04.de”, the second level of which is identical to the second level of the Disputed Domain Name.


The Complainant is the registered owner of the Community trademark registration No. 004901781 BAYER 04, which was registered on January 23, 2007, in connection with goods and services in classes 25, 28, and 41. The trademark predates the registration of the Disputed Domain Name by many years and covers inter alia United Kingdom, where the Respondent is located.
The Disputed Domain Name was registered on May 11, 2012. The Disputed Domain Name has also been offered for sale at “www.sedo.com”.



5. Parties’ Contentions

A. Complainant

The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights according to the Policy, paragraph 4(a)(i) and the Rules, paragraphs 3(b)(viii), (b)(ix)(1). The Disputed Domain Name fully incorporates the Complainant’s trademark BAYER 04 and is identical to such trademark.


The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name according to the Policy, paragraph 4(a)(ii) and the Rules, paragraph 3(b)(ix)(2). The Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks and has not permitted the Respondent to apply for or use any domain name incorporating the trademark BAYER 04. This shows the Respondent’s absence of rights or legitimate interests in the Disputed Domain Name. This has been established in the previous WIPO cases GGG Filmproduktion und Vertrieb e.K. v. E4 Group and Frank Jensen, WIPO Case No. D2006 1177; F. Hoffmann-La Roche AG v. Fred, WIPO Case No. D2006-0246; L’Association des centres distributeurs E. Leclerc - ACD LEC v. CC, WIPO Case No. D2005-1071; Wal-Mart Stores Inc. v. Frank Warmath, WIPO Case No. DTV2008-0013 and Janus International Holding Co. v. Scott Rademacher, WIPO Case No. D2002-0201.
Furthermore, there is no evidence of the Respondent’s use of, or demonstrable preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy. The Disputed Domain Name is used to earn pay-per-click-revenues for redirecting Internet users to third parties’ websites and thus capitalizing on the Complainant’s trademark. Such use is neither a bona fide use of the Disputed Domain Name pursuant to paragraph 4(c)(i) of the Policy nor a legitimate noncommercial or fair use of the Disputed Domain Name pursuant to paragraph 4(c)(iii) of the Policy.
Finally, there is no evidence, which suggests that the Respondent trades under the Disputed Domain Name or the name “Bayer 04”, or is commonly known by said domain name or the name “Bayer 04”. Under these circumstances, there is no doubt that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.
The Disputed Domain Name was registered and is being used in bad faith according to the Policy, paragraphs 4(a)(iii), 4(b); Rules, paragraph 3(b)(ix)(3). The combination of the terms “Bayer” and “04” is highly distinctive, well-known, and, to the best of the Complainant’s knowledge, solely connected to the Complainant and not used in commerce by any third party in the world.
On the other hand, the Respondent is the registered owner of more than 1,200 domain names and demonstrably targets third parties trademarks with his domain name registrations. In addition, he seems to be familiar with Germany or at least the German language. The Respondent must therefore have been aware of the Complainant and its well-known trademark BAYER 04. This finding is supported by the fact that the Respondent’s website available at the Disputed Domain Name shows advertising links clearly targeting the Complainant’s business and the trademark BAYER 04.
The Respondent’s use of the Disputed Domain Name redirects Internet users to a parking website that provides links to third parties websites, including links to the Complainant’s competitors. By using the website for sponsored links, the Respondent is trying to divert traffic intended for the Complainant’s website to his own for the purpose of earning click-through revenues from Internet users searching for the Complainant’s website. That kind of use has in many decisions been found to qualify as bad faith under paragraph 4(b)(iv) of the Policy, as the Respondent’s use of the Disputed Domain Name attempts to attract for commercial gain Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark. This according to the WIPO Case L’Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc. WIPO Case No. D2005 0623.
The Respondent’s registration of the Disputed Domain Name also prevents the Complainant from reflecting the trademark BAYER 04 in a corresponding domain name and the Respondent has engaged in a pattern of such conduct, as set out in paragraph 4(b)(ii) of the Policy. The Respondent has already been involved in at least two alternative dispute resolution proceedings which resulted in the transfer of the disputed domain name to the respective complainant.
The Respondent has offered to sell the Disputed Domain Name on the website available at “www.sedo.com”. Such offer to sell a domain name on a public website has been found to indicate that a domain name has primarily been registered with the intention of selling it to the complainant or one of its competitors in return for a payment that exceeds the costs directly related to the domain name under paragraph 4(b)(i) of the Policy. This according to State of Florida, Florida Department of Management Services v. Bent Pettersen, WIPO Case No. D2008-0039; National Football League Properties, Inc. and Chargers Football Company v. One Sex Entertainment Co., a/k/a chargergirls.net; WIPO Case No. D2000 0118; The Cheesecake Factory Incorporated and The Cheesecake Factory Assets Co., LLC v. cheesecake-factory.com, WIPO Case No. D2001-0648; DaimlerChrysler Corporation v. Brad Bargman, WIPO Case No. D2000-0222.
The Respondent’s use of the Disputed Domain Name is qualified to disrupt the Complainant’s business in that it is capable of reducing the number of visitors to the Complainant's website. This may adversely affect the Complainant's business and therefore constitutes bad faith. This according to BR IP Holder LLC v. Registrant [1966810]: Tech Administrator, WIPO Case No. D2009-1358 and Estée Lauder Inc. v. estelauder.com, estelauder.net and Jeff Hanna, WIPO Case No. D2000-0869.
Finally, the registration and use of the Disputed Domain Name by the Respondent also constitutes an abusive threat hanging over the head of the Complainant, which also supports a finding of bad faith. As the Respondent has no business relationship with the Complainant, there is no plausible use of the Disputed Domain Name other than the exploitation of the Complainant’s trademark BAYER 04 by the Respondent. This according to Akbank Turk A.S. v. Mustafa Ismet Cinar, WIPO Case No. D2009-0642; Digital Platform Iletisim Hizmetler A.S. v. Digiturk Co., WIPO Case No. D2008-0111 and Novo Nordisk A/S v. Service, Customer, WIPO Case No. D2009-0160.
In accordance with paragraph 4(i) of the Policy, for the reasons described above, the Complainant requests the Panel appointed in this administrative proceeding issue a decision that the Disputed Domain name be transferred to the Complainant.

B. Respondent

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




6. Discussion and Findings

Given the facts in the case and the Respondent’s failure to file a Response, the Panel accepts as true the contentions of the Complainant. The Respondent’s default does not however automatically lead to a transfer of the Disputed Domain Name. The Complainant must still establish that it is entitled to a transfer of the Disputed Domain Name under the Policy.


According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) The Disputed Domain Name is identical or confusingly similar to the 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 has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has trademark rights to BAYER 04 with reference to the trademark registrations provided in the Complaint. The Disputed Doman Name is and therefore contains the Complainants’ trademark BAYER 04 in its entirety with the added generic and functional Top-Level Domain (“gTLD”) “.com”. As established in many previous case the later may be disregarded and the Disputed Domain Name is therefore identical to the Complainant’s registered trademark.


Accordingly, the Panel finds that the Complainant has satisfied the requirements under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

In this case, the Complainant has offered convincing explanations and enough evidence of its exclusive rights concerning the BAYER 04 trademark. The Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Disputed Domain Name.


Therefore, the burden of production shifts to the Respondent to bring forward appropriate allegations or evidence of his rights or legitimate interests. The Respondent has not replied to the Complainant’s contentions. The failure to file a Response leaves the Panel to decide the case on the basis of the available record and the evidence provided by the Complainant. Upon consideration of the available record, the Panel is satisfied that the Respondent has no rights or legitimate interests in the Disputed Domain Name.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Panel finds that the Complainant’s trademark is well-known, and, that it is therefore highly unlikely that the Respondent was unaware of the Complainant’s trademark. Therefore, the Panel finds that the Disputed Domain Name was registered in bad faith.


With respect to the use, the record on file demonstrates that the Respondent has registered the Disputed Domain Name to sell it to the Complainant or a third-party in order to gain financial profit. This constitutes evidence of registration and use of the Disputed Domain Name in bad faith in accordance with paragraph 4(b)(i) of the Policy.
The Respondent’s use of the Disputed Domain Name redirects Internet users to a parking website that provides links to third parties websites, including links to the Complainant’s competitors. By using the website for sponsored links, the Respondent is trying to divert traffic intended for the Complainant’s website to his own for the purpose of earning click-through revenues from Internet users searching for the Complainant’s website. This constitutes evidence of registration and use of the Disputed Domain Name in bad faith in accordance with paragraph 4(b)(iv) of the Policy. There is no material in the record which displaces these presumptions.
The Panel finds that the Complainant has fulfilled the requirements under paragraph 4(a)(iii) of the Policy.


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 be transferred to the Complainant.



Anders Janson

Sole Panelist



Date: August 10, 2015



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