Complainant is Allianz, Compañía de Seguros y Reaseguros S.A., Barcelona, Spain, represented by Herrero & Asociados, Spain.
Respondent is John Michael, Laurel, Maryland, United States of America.
The disputed domain name <allianz-es.com> is registered with Freeparking Domain Registrars, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 13, 2009. On July 14, 2009, the Center transmitted by email to Freeparking Domain Registrars, Inc. a request for registrar verification in connection with the disputed domain name. On August 7, 2009, Freeparking Domain Registrars, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant, providing the contact details, and advising that the domain name is locked. 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 August 10, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was August 30, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on September 1, 2009.
The Center appointed Manoel J. Pereira dos Santos as the sole panelist in this matter on September 9, 2009. 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 trademark upon which the Complaint is based is ALLIANZ. According to the documentary evidence and contentions submitted, Complainant directly and through related companies owns a number of trademark registrations for the ALLIANZ trademark around the world, including the Spanish Registrations Ns. M 2,215,340 of May 1, 2000; M 2,215,341 of May 1, 2000; M 2,215,343 of May 1, 2000; and M 2,215,344 of May 1, 2000, for a variety of goods and services. Upon independent survey at the U.S.P.T.O, the Panel found that a German member of the Allianz Group, Allianz SE Corporation, owns the United States Registrations Ns. 2,145,557 of March 24, 1998, 2,256,628 of June 29, 1999, and 2,392,939 of October 10, 2000, for life, property and casualty insurance underwriting services, and a full line of insurance services.
According to the documentary evidence and contentions submitted, Complainant's Group offers insurance, banking and asset management products and services in about 70 countries. The Panel accepts Complainant's contentions that ALLIANZ is one of the leading insurance groups in the world and conducts business in almost every European country, and in the United States and the Asia-Pacific region.
The Panel also notes that the fame of the ALLIANZ trademark has been confirmed in previous WIPO decisions involving other members of the Allianz Group. See, e.g., Allianz SE v. Weingarth, Steve, Organisation of Allianzen; WIPO Case No. D2007-0625; Allianz SE v. Well Domains are either owned by us or Client Managed; WIPO Case No. D2008-0535.
The domain name <allianz-es.com> was registered with Freeparking Domain Registrars, Inc. on March 26, 2009. According to the documentary evidence and contentions submitted, the disputed domain name directs Internet users to a website targeting the Spanish market, which is a copy of the design of Complainant's Spanish website. On June 30, 2009 Complainant sent a cease and desist letter to Respondent by email. On the same date, Complainant sent a letter by email to the Freeparking Domain Registrars, Inc. requesting the deletion of any contents on Respondent's website for being false and fraudulent.
Complainant argues that the disputed domain name is identical to the ALLIANZ trademark because it includes the registered trademark and the expression “es” clearly refers to the Spanish market. Complainant also contends that Internet users may believe that they are before the Spanish website of the Allianz Group.
Complainant further contends that Respondent does not have legitimate rights or interests regarding the disputed domain name because (i) Complainant has not licensed or otherwise authorized Respondent to use its trademark or to apply for any domain name incorporating its trademark; (ii) Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services; and (iii) there is no company with the name ALLIANZ or holding any right to the name ALLIANZ other than Complainant.
Finally, Complainant contends that Respondent registered and is using the disputed domain names in bad faith because (i) Respondent aims to attract a misled public to his website, (ii) Respondent has copied the design of the Complainant's Spanish website in order to attract consumers to a false insurance and bank website, and (iii) Respondent has a clear purpose of disrupting the business of Complainant.
The Respondent did not reply to the Complainant's contentions.
The consensus view is that the respondent's default does not automatically result in a decision in favor of the complainant and that the complainant must establish each of the three elements required by paragraph 4(a) of the UDRP (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 2.2). However, paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules.
This Panel finds that there are no exceptional circumstances for the failure of Respondent to submit a Response. As a result, the Panel infers that Respondent does not deny the facts asserted and contentions made by Complainant from these facts. Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; LCIA (London Court of International Arbitration) v. Wellsbuck Corporation, WIPO Case No. D2005-0084; Ross-Simons, Inc. v. Domain.Contac. WIPO Case No. D2003-0994. Therefore, asserted facts that are not unreasonable will be taken as true and Respondent will be subject to the inferences that flow naturally from the information provided by the Complainant. Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; RX America, LLC v. Matthew Smith, WIPO Case No. D2005-0540.
The Panel will now review each of the three cumulative elements set forth in paragraph 4(a) of the Policy to determine whether Complainant has complied with such requirements.
The domain name <allianz-es.com> incorporates the ALLIANZ mark in its entirety. As decided in Allianz SE v. Yi Qin, WIPO Case No. D2008-1502, ALLIANZ is a highly distinctive trade mark. Therefore, in this type of combination it is clear that the ALLIANZ trademark stands out and leads the public to think that the disputed domain is somehow connected to the owner of the registered trademark.
Previous WIPO UDRP panels have held that when a domain name wholly incorporates a complainant's registered trademark that may be sufficient to establish confusing similarity for purposes of the Policy. See, e.g., Telstra Corporation v. Barry Cheng Kwok Chu, WIPO Case No. D2000-0423; Pfizer Inc. v. United Pharmacy Ltd, WIPO Case No. D2001-0446; E.I. du Pont de Nemours and Company v. Richi Industry S. r. l., WIPO Case No. D2001-1206; Utensilerie Associate S. p. A. v. C & M, WIPO Case No. D2003-0159; Shaw Industries Group Inc., Columbia Insurance Company v. Wan-Fu China, Ltd., WIPO Case No. D2007-0282. That is particularly true where the disputed domain name incorporates a well-known trademark, as in the instant case.
The addition of the generic term “es” does not affect a finding that the disputed domain name is confusingly similar to the ALLIANZ registered mark. It has been consistently decided that the mere addition of generic or descriptive terms to an otherwise distinctive mark name in a domain name is insufficient to displace a finding that the domain name is confusingly similar to the mark. See, e.g., Quixar Investments Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253. The likelihood of confusion between the disputed domain name and the ALLIANZ trademark is reinforced by the fact that Complainant, one of the companies of the Allianz Group, is a Spanish company. The suffix “.es” is the typical designation of Spanish domain names.
Also, the addition of the suffix “.com” is non-distinctive because it is required for the registration of the domain name. RX America, LLC v. Mattew Smith, supra.
Therefore, the Panel finds that the <allianz-es.com> domain name is clearly confusingly similar to the ALLIANZ trademark and, as a result, finds that the requirement of paragraph 4(a)(i) of the Policy is met.
The Panel finds as reasonable Complainant's contentions that (i) Complainant has not licensed or otherwise authorized Respondent to use its trademark or to apply for any domain name incorporating its trademark; and (ii) there is no company with the name ALLIANZ or holding any right to the name ALLIANZ other than Complainant and the other members of the Allianz Group.
The Panel finds that Respondent is neither using the disputed domain name in connection with a bona fide offering of goods or services, nor is it making a legitimate noncommercial or fair use of the domain name. According to the printout of Respondent's website, Respondent simulates the homepage of a website of the Allianz Group by providing information about, e.g., the activities conducted by Allianz Finance. This is done under a domain name that is confusingly similar to Complainant's ALLIANZ trademark. To the Panel, this behavior does not constitute a bona fide offering of goods or services.
In short, Complainant has satisfied its burden of providing sufficient evidence to show that Respondent lacks rights to or legitimate interests in the disputed domain name, and Respondent has failed to provide the Panel with any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that Respondent has any rights or legitimate interests in the disputed domain names. Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465.
In light of the foregoing, the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is met.
First of all, the Panel finds that the ALLIANZ trademark has acquired extensive and worldwide reputation and is to be regarded as a well-known trademark. As one panel held before, “given the Complainant's worldwide reputation, and presence on the Internet, indicates that Respondent was or should have been aware of the marks prior to registering the disputed Domain Name.” Caesar World, Inc. v. Forum LLC, WIPO Case No. D2005-0517. In light of the reputation of the ALLIANZ trademark, it is clear that Respondent in all likelihood knew of the existence of Complainant's trademark. See also Banco Santander Central Hispano, S.A. v. Banco Santander of Central Hispano, WIPO Case No. D2005-0631.
In addition, the Panel concurs with previous WIPO UDRP decisions holding that registration of a well-known trademark as a domain name is a clear indication of bad faith in itself, even without considering other elements. See Veuve Cliquot Ponsardin, Maison Fondee en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163; Pepsico, Inc. v. “null”, aka Alexander Zhavoronkov, WIPO Case No. D2002-0562; Pepsico, Inc. v. Domain Admin, WIPO Case No. D2006-0435.
One of Complainant's contentions of bad faith is based on the argument that Respondent aims to attract consumers to a false insurance and bank website by copying the design of Complainant's Spanish website thereby misleading the Internet users.
An independent investigation was conducted by the Panel by attempting to visit the website at “www.allianz-es.com” (attempts made on September 21 and 22, 2009). The Panel notes that the domain name at issue is apparently inactive as no access to Respondent's website was possible. Therefore, the Panel relies on the print out of Respondent's website homepage which simulates the homepage of Complainant's website. This evidence has not been refuted by Respondent.
Complainant relies on two previous WIPO UDRP decisions involving the fraudulent use of deceptive websites. In Banco Bilbao Vizcaya Argentaria. S.A. v. Laura Ayoub, WIPO Case No. D2005-0958, the panel noted that respondent's website adopted the same basic design and trade dress as the complainant's website, and found that the complainant's Internet users might access respondent's website and transmit, without willing it, their usernames and passwords to unauthorized third parties. The panel considered that respondent appeared to be using the web page for “phising”, described “as the fraudulent acquisition, through deception, of sensitive personal information such as passwords and credit card details, by masquerading as someone trustworthy with a real need for such information”, as similarly stated in Finter Bank Zurich v. N/A, Charles Osabor, WIPO Case No. D2005-0871.
In Finter Bank Zurich v. N/A, Charles Osabor, supra, the panel held that respondent had registered the disputed domain name with the intention to divert Internet users and to gain access to names and passwords of the complainant's clients through mistaken login to respondent's website. In that case the panel also found evidence of duplication in the complainant's branding and imagery.
The Panel concurs with such understanding and finds that evidence of the practice of “phising” or “phishing” is a conclusive showing of bad faith use of a domain name. “Phising” has sometimes been defined as the particular deceptive technique of simulating a website to acquire sensitive personal information, since “phishing” includes other deceptive techniques in electronic communications. See Halifax plc v. Sontaja Sunducl, WIPO Case No. D2004-0237.
Complainant also contends that Respondent has a clear purpose of disrupting the business of Complainant. Given not only the evidence of bad faith but possibly suggestive of deceptive phishing activity as well, Respondent's conduct has the potential of disrupting the business of Complainant.
In light of all the conclusions and findings above, the Panel finds that the requirement of paragraph 4(a)(iii) of the Policy is met.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <allianz-es.com> be transferred to the Complainant.
Manoel J. Pereira dos Santos
Dated: September 22, 2009