The First-named Complainant is Allianz Australia Insurance Limited of Sydney, Australia, and the Second-named Complainant is Allianz Australia Limited of Sydney, Australia, both represented by Melbourne IT Digital Brand Services, Australia.
The Respondent is Throne Ventures Pty Limited, Australia.
The disputed domain name <allianzinsurance.com.au> is registered with NameScout Corp.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 6, 2010 in the name of the First-named Complainant. On May 6, 2010, the Center transmitted by email to NameScout Corp. a request for registrar verification in connection with the disputed domain name. On May 6, 2010, NameScout Corp. 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 .au Dispute Resolution Policy (the “Policy”), the Rules for .au Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au 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 May 18, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 7, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 8, 2010.
The Center appointed Dan Hunter as the sole panelist in this matter on June 18, 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.
On July 8, 2010 the Panel concluded that there was a need for clarification regarding the identity of the Complainant and made the following Panel Order No.1:
“The Complainant, Allianz Australia Insurance Limited, provides evidence that Allianz Australia Ltd has rights in a company name pursuant to Paragraph 4 of the aUDRP. The Complainant is hereby granted one week from this date to file evidence that it has rights in the name Allianz Australia Ltd, the company referred to in Annex 1; or to provide evidence (additional to that in Annex 5) of a corporate relationship between the companies; or to provide evidence of Allianz Australia Ltd's written consent to the bringing or and remedy sought in the present dispute by the Complainant; or to amend the Complaint to file in the name of Allianz Australia Ltd. The Respondent is hereby granted two days from this date to indicate if it has any comments on or objection to the Panel considering this evidence, or allowing the change or addition of party. If any such indication would be received from Respondent within these two days, a further brief period to submit comments may be provided; otherwise, the Panel will proceed on the assumption that the defaulting Respondent would have no objection.”
On July 10, 2010 the Second-named Complainant notified the Center that it elected to be named as a complainant in this matter. The Panel so ruled. The Respondent made no submissions in relation to Panel Order No. 1.
The First-named Complainant is the largest subsidiary of the Second-named Complainant and is a general insurer in Australia. It has over 2 million policyholders and employs 3300 people. It or its parent company maintains a number of websites and appears to have registered a number of domain names and trademarks: these are referred to in the Complaint, but no evidence is provided of ownership or registration in the Complaint. Since May 24, 1999, the Second-named Complainant has been the owner of the registered company name “Allianz Australia Ltd”, Australian Company Number 000 006 226.
The Respondent appears to be an Australian business, with the address as provided above. It did not provide a response and so no other information is known about it.
The Complainants assert that the Respondent's domain name is identical or confusingly similar to a name, trademark or service mark in which the Complainants have rights. Specifically, the Complainants assert:
(1) The Respondent's domain name comprises “Allianz” and “insurance” in which the Complainants have established rights due to commercial use and due to business registrations. The Complainants have also registered numerous domain names containing “Allianz”, “insurance” and “Australia.”
(2) The presence of “.com.au” should be disregarded in the determination of similarity.
(3) Anyone who sees the domain name is bound to mistake the domain name for one related to the Complainants.
(4) The trademark ALLIANZ has been the subject of numerous Uniform Domain name Resolution Policy (“UDRP”) decisions where the domain names have been transferred.
The Complainants assert that the Respondent has no rights or legitimate interests in the domain name. Specifically, the Complainants assert:
(1) The domain name was registered seven years after the registration of the company name.
(2) The Respondent has no registered trademarks or company/business name registrations for “Allianz Insurance.”
(3) The registration of a domain name does not of itself grant legitimate interests.
(4) The Respondent is not using the domain name in connection with the bona fide offering of goods or services. The domain name resolves to a website which contains advertisements and links to websites dealing with subjects such as financial services.
The Complainants assert that the Respondent registered the domain name or is using it in bad faith. Specifically, the Complainants assert (in pertinent part):
(1) The Complainants' mark is distinctive and widely known throughout Australia.
(2) The value and the goodwill of the business name cannot have been unknown to the Respondent.
(3) The Respondent offered to transfer the domain name to the First-named Complainant for USD 1,000, which is more than its reasonable out of pocket fees.
(4) The Respondent has been a party in other UDRP actions.
Accordingly, the Complainants submit that the Panel should order that the domain names be transferred to the First-named Complainant.
The Respondent did not reply to the Complainants' contentions.
Paragraph 15 of the Rules provides that the Panel is to decide any Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In doing so, the onus is on the Complainant(s) to make out its/their case and both the Policy, and many aUDRP decisions have made it clear that Complainants must show that all three elements of the Policy have been made out before any order can be made to cancel or transfer a domain name.
Thus, for the Complainants to succeed they must prove, within the meaning of paragraph 4(a) of the Policy, that:
1. The Complainants have rights in a name, trademark or service mark, with which the Respondent's domain name is identical or confusingly similar (paragraph 4(a)(i)); and
2. The Respondent has no rights or legitimate interests in respect of the domain name (paragraph 4(a)(ii); and
3. The Respondent registered or is subsequently using the domain name in bad faith (paragraph 4(a)(iii)).
The Panel therefore addresses each of these elements in turn.
There are two requirements that complainants must establish under this paragraph; that they have rights in a name, trademark or service mark, and that the domain names are identical or confusingly similar to the name or marks.
Paragraph 4(a)(i) of the Policy has an explanatory note in relation to the first requirement, as follows:
“ For the purposes of this policy, auDA has determined that a “name … in which the complainant has rights” refers to:
a) the complainant's company, business or other legal or trading name, as registered with the relevant Australian government authority; or
b) the complainant's personal name.”
The Second-named Complainant is the registered owner of the company name “Alliance Australia Ltd” and has provided evidence of the registration documents for this name. Based on the explanatory note 1 of the Policy, the Panel concludes that the Second-named Complainant has established rights in a name sufficient for the purposes of paragraph 4(a)(i) of the Policy.
The second requirement is that the domain name be identical or confusingly similar to the mark. The Respondent's domain name comprises the salient part of the Second-named Complainant's highly distinctive company name, “Allianz”, together with the word “insurance”, which is the description of the services offered by the Complainants. As a result, an Internet user accessing or using the domain name is highly likely to believe that the domain name is associated with the Complainants. The domain name also includes the “.com.au” extensions; but it is now well established that the ccTLD signifier does not change the meaning of the name. Because of the strength of the name “Allianz” and the use in the domain name of the services of the Complainants, the Panel concludes that the domain name is confusing similar to the First-named Complainant's name.
The Complainants have therefore shown that they have the appropriate rights in a name, trademark or service mark, and that the domain name is identical or confusingly similar to this name or mark. The Panel finds therefore that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Under paragraph 4(a)(ii) of the Policy, complainants have the burden of establishing that the Respondent has no rights or legitimate interests in respect of the domain name. However, once a complainant has made a prima facie showing, the burden of proof shifts to the respondent to show, by providing concrete evidence (i.e. more then mere personal assertions), that it has rights to or legitimate interests in the disputed domain name. See e.g. Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624.
The Complainants make the assertions that the Respondent has no permission to use the mark. The Respondent has provided no Response, and there is no evidence of any of the canonical examples of legitimate interest that are provided in paragraph 4(c) of the Policy. Notably, although the Respondent is making a use of the domain name in conjunction with a website, the site is merely a link page to other offerings of insurance and finance services. This is not a bona fide offering of goods, as provided in paragraph 4(c)(i) of the Policy.
The Complainants have therefore made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which the Respondent has failed to rebut. The Panel concludes therefore that the Complainants have satisfied the requirements of paragraph 4(a)(ii) of the Policy.
The Complainants assert that the Respondent has registered or is using the domain name in bad faith, as required under paragraph 4(a)(iii) of the Policy. The Respondent has provided no Response.
There is evidence that the Respondent has intentionally attempted to attract, for commercial gain, Internet users using the domain name to the Complainants' detriment, as per the requirements of paragraph 4(b)(iv) of the Policy. Moreover, there is also evidence is that the Respondent sought USD 1,000 for the transfer of the domain name. This falls into the exemplar of paragraph 4(b)(i) of the Policy, since this amount is greater than the reasonable out-of-pocket costs of the Respondent.
Since the evidence is that the Respondent is seeking to trade on the name of the Complainant pursuant to paragraph 4(b)(iv) of the Policy, and/or has sought to ransom the domain name pursuant to paragraph 4(b)(i) of the Policy, the Panel concludes that the Complainants have made out the final element of their case.
The appropriate remedy is the transfer of the domain name, however there is an issue of which complainant is the appropriate recipient. The First-named Complainant initially filed the Complaint and the remedy requested is to transfer the domain name to the First-named Complainant. Since this Complainant is an Australian registered company there is no reason not to transfer the domain name to this entity.
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 <allianzinsurance.com.au> be transferred to the First-named Complainant.
Date: July 16, 2010