WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Allianz SE v. Venkateshwara Distributor Private Limited/PrivacyProtect.org
Case No. D2010-0951
1. The Parties
The Complainant is Allianz SE of Munich, Germany, represented by in-house counsel.
The Respondents are Venkateshwara Distributor Private Limited of Mumbai, India and PrivacyProtect.org of Moergestel, Netherlands. For the sake of simplicity, the Respondents will be jointly referred to as the Respondent, unless otherwise indicated.
2. The Domain Name and Registrar
The disputed domain name <wwwallianz.com> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com (“the Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on June 10, 2010. On June 10, 2010, the Center transmitted by email to the Registrar a request for verification in connection with the disputed domain name. On June 15, 2010, the Registrar transmitted by email to the Center its verification response advising that PrivacyProtect.org was merely a privacy service enabled by Respondent Venkateshwara Distributor Private Limited, and providing the latter’s contact details. The Center sent an email communication to the Complainant on June 18, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint, but without the Complainant being required to do so. The Complainant filed an amendment to the Complaint on June 21, 2010, naming Venkateshwara Distributor Private Limited as Respondent in addition to PrivacyProtect.org. The Center verified that 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 June 29, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was July 19, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 20, 2010.
The Center appointed Reynaldo Urtiaga Escobar as the sole panelist in this matter on July 28, 2010, having previously received his Statement of Acceptance and Declaration of Impartiality and Independence, as per the Rules, paragraph 7. The Panel finds that it was properly constituted.
The administrative proceedings were conducted in English for this was the language of the disputed domain name’s Registration Agreement.
4. Factual Background
The Complainant, who was founded in 1890, is one of the leading integrated financial services providers in the world with revenues totaling 97.4 billion Euros in 2009, and 152,000 employees serving 75 million customers in about 70 countries.
The Complainant offers a wide range of insurance, banking, and asset management products worldwide under the ALLIANZ mark, which has long been used in commerce and is registered since 1979 in Germany and other countries in connection with insurance and financial services pertaining to international class 36.
To provide information on the company and its various lines of business, the Complainant maintains a website under “www.alianz.com” since 1997, in addition to several other country-based domain names.
The Respondent registered the domain name <wwwallianz.com> on January 27, 2005. The disputed domain name resolves to a website featuring click-through advertisement links and banners related to the insurance, banking and financial industry.
After three unsuccessful attempts to get the Respondent to surrender the disputed domain name, the Complainant commenced the instant proceedings.
5. Parties’ Contentions
Complainant puts forward the following arguments:
(i) The disputed domain name is confusingly similar to the Complainant’s trademark as both signs are partly identical, the only difference being the “www” prefix that usually stands for the first level of any given domain name;
(ii) As the Complainant is known worldwide as a leading financial services provider, the Respondent’s use of the ALLIANZ trademark in combination with the “www” prefix creates confusion among Internet users;
(iii) The Respondent neither holds ALLIANZ trademark registrations of its own nor has ever been licensed or authorized to use the Complainant’s ALLIANZ mark;
(iv) The Respondent’s trading on the fame of the Complainant’s mark to attract Internet users does not correspond to any of the defenses laid down in paragraph 4(c) of the Policy;
(v) The Respondent has never used the disputed domain name in connection with a bona fide offering of goods of services;
(vi) The Respondent is not commonly known by the disputed domain name, which is demonstrated by the fact that the associated website does not contain any reference whatsoever to the Respondent;
(vii) In any event, the Complainant’s prior rights over the Allianz name preclude the Respondent from being known by the disputed domain name;
(viii) The Respondent is also not making a legitimate non-commercial use of the disputed domain name in the sense of paragraph 4(c)(iii) of the Policy given that the banners and hyperlinks featured on the website are displayed as “sponsored results” which are commercial in nature;
(ix) The Respondent’s actions squarely fall within the bad faith scenario described in paragraph 4(b)(iv) of the Policy;
(x) It cannot be reasonably argued that the Respondent was not aware of a very well-known trademark like ALLIANZ at the time of registering the disputed domain name;
(xi) Since the Respondent’s website can be accessed without entering “www” before the disputed domain name, it can be easily inferred that the Respondent aims at netting Internet users making typos and expecting to arrive at Complainant’s website;
(xii) The Respondent’s intention when registering and using the disputed domain name has been twofold, on the one hand taking unfair advantage of the ALLIANZ trademark, and on the other, to confuse customers, as confirmed by the fact that over fifty percent of all the hyperlinks contained in the Respondent’s website refer to insurance topics.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed in its claim, the Complainant must demonstrate that the following three conditions are met:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith
The Respondent’s default
Even though the Respondent’s default does not spare the Complainant the onus of establishing the three elements required by paragraph 4(a) of the Policy (see section 4.6 of the WIPO Overview of WIPO Panels Views on Selected UDRP Questions), the Panel may accept all reasonable and supported allegations and inferences made in the Complaint as true. See Charles Jourdan v. Holding AG v. AAIM, WIPO Case No. D2000-0403 (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint) and also Vertical Solutions Mgmt., Inc. v. webnet-marketing, Inc., NAF Case No.95095 (holding that the respondent’s default allows all reasonable inferences of fact in the allegations of the complainant to be deemed true).
A. Identical or Confusingly Similar
As noted by the overwhelming majority of UDRP Panels, the question under paragraph 4(a) of the Policy is whether the domain name at issue is confusingly similar to the Complainant’s mark, not whether the website to which the subject domain name resolves will confuse Internet users. See The Vanguard Group, Inc. v. John Zuccarini, WIPO Case No. D2002-0834 (A complainant need not establish actual confusion because the test is objective, not subjective).
Accordingly, from a literal comparison between <wwwallianz> representing the relevant portion of the disputed domain name, and ALLIANZ, it becomes noticeable that the Complainant’s service mark is wholly contained in the Respondent’s domain name, the only difference being the presence of the generic prefix “www” in the domain name.
The authority is legion under the Policy that a finding of confusing similarity is warranted where the disputed domain name embodies the well-known acronym for “world wide web”, - commonly referred to as the Web -, since “www” is the default sub domain in most website addresses. See Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441 (the letters “www” have no distinguishing capacity in the context of domain names for they represent, when succeeded by a period, an extremely common, although not universal, prefix to the domain name in a URL for a web page on the Internet); and MasterCard International Incorporated v. DL Webb, WIPO Case No. D2008-0324 (the addition of the “www” prefix is insufficient to differentiate the complainant’s mark from the domain name and does not prevent confusion between <wwwmastercard.com> and MASTERCARD).
As a result, this Panel finds that the Complainant has established the first threshold of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Complainant warrants and represents that the Respondent holds no trademark registrations consisting of or comprising the ALLIANZ name, and at the same time that it has never licensed, authorized or consented to the use of its ALLIANZ service mark by the Respondent.
Furthermore, the Complainant submits that the Respondent’s association of <wwwallianz.com> to a website that profits from the fame and goodwill of the Complainant and its ALLIANZ trademark cannot give rise to rights or legitimate interests in the disputed domain name to the benefit of the Respondent.
Given the worldwide notoriety of the ALLIANZ mark in connection with the provision of insurance and financial services, the Panel has no difficulty in endorsing the Complainant’s proposition that the Respondent is precluded from being commonly known by the disputed domain name, even more so where the latter resolves to a competing website.
The evidence on record shows that the Respondent is not making a legitimate noncommercial or fair use of <wwwallianz.com> without intent for commercial gain to misleadingly divert consumers, nor is it using the disputed domain name in connection with a bona fide offering of goods or services as the resolving website actually deflects Internet traffic intended for the Complainant to a website providing sponsored hyperlinks about insurance, banking, and financial products under the ALLIANZ brand name. See United Parcel Service of America, Inc. v. Michael Robert, WIPO Case No. D2008-0339 (Respondent presumably earns revenues from the website at the domain name when Internet users click on sponsored advertising links. This constitutes neither a bona fide offering of goods and services under the domain name, nor a non-commercial or fair use thereof).
In sum, on the evidence and legal argument submitted, and in view of the Respondent’s default, the Panel is prepared to accept that none of the defenses set forth in 4(c) of the Policy is available to the Respondent.
Accordingly, the Complainant has demonstrated the second limb of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The Complainant argues that the Respondent could not have been unaware of the ALLIANZ trademark at the time of registering a domain name that is almost identical to the Complainant’s mark, which is well-known in the insurance and financial services industry, as acknowledged in several UDRP decisions and court rulings appended to the Complaint.
The Complainant further submits that since the Respondent’s website can be accessed without typing “www” before <wwwallianz.com>, it is clear that the Respondent has aimed from the beginning at netting Internet users who, in trying to enter the Complainant’s website, made a common typo. It is then the Complainant’s conclusion that the Respondent has unfairly profited from the ALLIANZ trademark’s fame by confusing the Complainant’s customers on the net.
It is to be noted that several UDRP decisions have characterized the registration of “wwwdomains” as a form of typosquatting amounting to bad faith for the purposes of the Policy, to the extent that such practice is intended to trap Internet users who, more often than not, forget to type the “dot” when entering the “www” convention. See Schering-Plough Corporation, Schering Corporation, Schering Plough Ltd. v. Stementali Quemistas, WIPO Case No. D2009-0841 (because many domain names begin with “www” followed by a period followed by the name of the web site, the disputed domain name is calculated to divert Internet traffic of end users seeking to find the website of the complainant, who accidentally omit the period after the “www” prefix. This is a classic case of typosquatting); and Compagnie Gervais Danone, Bonafont S.A. de C.V. v. PrivacyProtect.org, WIPO Case No. D2009-1659 (use of the prefix “www” added to the trademark itself is a strong indication of bad faith showing that the respondent intended to take unfair advantage of a common typing error on the part of Internet users).
Moreover, the evidence produced by the Complainant show that the Respondent’s website is made up exclusively of sponsored hyperlinks, advertising banners, and commercial pop-ups, without any goods or services being offered for sale. It is beyond cavil that this type of use of the domain name constitutes bad faith in the context of the Policy. See F. Hoffmann-La Roche AG v. Transure Enterprise Ltd., WIPO Case No. D2008-0422 (It is clear that <wwwroche.com> is being used to direct traffic to a website where the respondent obtains commercial gain through sponsored listings, which is demonstrative of bad faith use as per the Policy).
The Panel is therefore satisfied that the Complainant has met its burden under paragraph 4(a)(iii) of the Policy.
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 <wwwallianz.com> be transferred to the Complainant.
Reynaldo Urtiaga Escobar
Dated: August 11, 2010