The Complainant is AXA, S.A. of Paris, France, represented by Gibbons P.C., United States of America.
The Respondent is PrivacyProtect.org of Moergestel, the Netherlands / Koddos, Ronald Linco of Paris, France.
The disputed domain name <axacofinance.com> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 5, 2010. On February 23, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain name. On February 25, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response, disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 26, 2010, providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. In the same email communication, the Center also notified the Complainant that the Complaint was administratively deficient due to the Mutual Jurisdiction clause. The Complainant filed a First Amended Complaint on March 3, 2010. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 4, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 24, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 25, 2010.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on April 1, 2010. 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.
Regarding the language of the proceeding, the Center ascertained from the Registrar that the language of the Registration Agreement is English. Accordingly, the Panel determines that pursuant to paragraph 11(a) of the Rules the language of the proceeding is English, i.e. the language of the registration agreement.
The evidence submitted by the Complainant, which, in the absence of any Response by the Respondent remains undisputed, indicates that the Complainant is a corporation organized under the laws of France which is the holding company of a group providing insurance and other financial services to approximately 80 million clients worldwide. As part of its business, the Complainant has secured a variety of United States and international trademark registrations for the mark AXA, as well as for various formative marks incorporating AXA. Although the Complainant did not append to its Complaint or to its First Amended Complaint evidence of these mark registrations, they are listed in the Complaint and the First Amended Complaint and the earliest listed one dates back to 1992.
The disputed domain name was registered by the Respondent on July 21, 2009.
(i) The Complainant asserts that because it is a global company and with its group a worldwide leader in financial protection and wealth management, the AXA marks are extremely well-known and famous, particularly in the insurance and financial industry.
(ii) The Complainant contends that the Respondent's domain name is nearly identical to and confusingly similar to the Complainant's famous marks, because it incorporates in its entirety the Complainant's famous AXA mark with the phrase “cofinance” added to it.
(iii) The Complainant contends that since the Complainant's adoption and extensive use of the AXA mark predates the registration date of the disputed domain name, the burden is on the Respondent to establish rights or legitimate interests in the disputed domain name, and that the Respondent cannot demonstrate any such rights or legitimate interests.
(iv) The Complainant contends that the Respondent's bad faith registration and use of the disputed domain name is established by the fact that the latter consists of Complainant's famous AXA mark, with the addition of the generic term “cofinance”, that the Respondent had received no authorization, license or permission to use it, that the Respondent had constructive notice of Complainant's registered trademarks, and by the fact that the disputed domain name attempts to attract for commercial gain, Internet's users to the Respondent's web site by creating a likelihood of confusion with the Complainant's famous mark as to the source, sponsorship affiliation or endorsement of the Respondent's web site and the services it offers its web site.
(v) The Complainant requests that the disputed domain name be transferred to the Complainant.
The Respondent did not reply to the Complainant's contentions.
The Respondent is formally in default pursuant to paragraphs 5(e) and 14(a) of the Rules and paragraph 8(c) of the Supplemental Rules, because no Response was received from the Respondent within the time limit set by the Center.
Paragraph 10(a) of the Rules gives the Panel broad discretion to conduct the proceedings and paragraph 10(b) of the Rules also obligates the Panel to give each party “a fair opportunity to present its case”.
At the same time, the Panel must ensure that the proceedings take place “with due expedition”.
Accordingly, in the interest of fairness and of deciding the case on the basis of the most complete available record, the Panel has undertaken some limited factual research into matters of public record insofar as it felt it needed the results of such research to reach its decision.
The Panel thus ascertained that there is no street named “Rue des Prunes” in Paris, no phone listed under the name of Mr. Ronald Linco and no company listed in the Companies Registry under the name Koddos.
Under paragraph 4(a) of the Policy, it remains the Complainant's burden to establish that all three of the required criteria for a transfer of the disputed domain name or other remedy have been met.
Under the Rules, paragraphs 5(e) and 14(a), the effect of a default by the Respondent is that the Panel shall proceed to a decision on the Complaint. Under paragraph 14(b) of the same Rules, the Panel is empowered to draw such inferences from the Respondent's default as it considers appropriate under the circumstances.
In this case, the Panel finds that as a result of the default, the Respondent has failed to rebut any of the factual assertions that are made and supported by evidence submitted by the Complainant.
In particular, by defaulting and failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.
Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant's arguments that the Respondent has acted in bad faith.
In comparing the Complainant's mark to the disputed domain name, it is evident that the latter, <axacofinance.com>, consists solely of the Complainant's trademark AXA, plus the generic terms “co”, “finance” and “.com”. The addition of generic terms does not ordinarily serve to distinguish a domain name from registered marks. See Banconsumer Service, Inc. v. Mary Langthorne, Financial Advisor, WIPO Case No. D2001-1367, Royal Bank of Canada v. RBC Bank, WIPO Case No. D2002-0672 and Allianz AG v. Marian Dinu, WIPO Case No. D2006-0318.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant's AXA mark, despite the addition of these generic terms.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
There is no evidence in the record in this case that persuades the Panel that the Respondent has any rights or legitimate interests in the disputed domain name. The Complainant credibly states that the Respondent has no rights or legitimate interests in the disputed domain name and the Panel finds that this contention is unrebutted as a consequence of the Respondent's lack of any Response.
Neither does the use of the disputed domain name appear to the Panel to be in connection with a legitimate noncommercial or fair use, nor to be without the intent to misleadingly divert customers for commercial gain.
On the contrary, the Panel noted that the Respondent's past and current uses of the disputed domain name seem calculated to trade off confusion with the Complainant's well-known and famous AXA mark.
As such, on balance, the Panel is entitled to infer that the Respondent has no rights or legitimate interests in the disputed domain name and as a consequence, the Panel finds that the Complainant has satisfied the requirement of paragraph 4(a)(ii) of the Policy.
Paragraph 4(b) of the Policy sets out four illustrative circumstances of the registration and use of a domain name in bad faith. The fourth is the intentional attempt “to attract, for commercial gain, Internet users to [the Respondent's] web site 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] web site or location or of a product or service on [the Respondent's] web site or location.”
As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant's arguments that the Respondent has acted in bad faith.
In this case, the Respondent registered the disputed domain name years after the Complainant began using its mark worldwide. The Panel also notes that the Center's website lists 29 cases, nine of which decided in the last year alone, where the Complainant or one of its group companies is the complainant, and finds that the Respondent must have been aware of the Complainant's trademark rights at the time he registered the disputed domain name. See Telstra Corporation Ltd. v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
Moreover, the Respondent has used the disputed domain name to attract Internet users to a website that offers goods and services which compete directly with those offered by the Complainant. The Respondent features the Complainant's mark prominently on that website. Accordingly, the Panel finds that the Respondent has used the disputed domain name to intentionally attract Internet users to his website for the purpose of commercial gain by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website. This is evidence of bad faith registration and use under paragraph 4(b)(iv) of the Policy. LIN Television Corporation v. Home In USA and Home In USA, Inc., WIPO Case No. D2000-0257.
The Panel finds that the Complainant has met its burden under the Rules, paragraph 4(b)(iv), because its appears more likely than not from the evidence offered by the Complainant that the Respondent has registered the disputed domain name in an attempt to attract users to the “www.axacofinance.com” website for commercial gain due to confusion with the Complainant's mark. See Infospace.com v. Tenenbaum Ofer, WIPO Case No. D2000-0075.
The Panel also notes that although using a proxy service to hide the identity of the registrant is not per se conclusive of bad faith registration and use (see Trinity Mirror Plc and MGN Ltd. v. Piranha Holdings, WIPO Case No. D2008-0004), this fact added to the Respondent's conduct in offering a high yield investment program and providing a false address and a bogus company name is strongly indicative of bad faith.
The Panel concludes in the present circumstances that the Respondent registered and is using the disputed domain name in bad faith to trade off confusion and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case.
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 <axacofinance.com> be transferred to the Complainant.
Louis-Bernard Buchman
Sole Panelist
Dated: April 15, 2010