WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Allianz SE v. Omar Guerrero / 1&1 Internet, Inc.
Case No. D2012-2307
1. The Parties
The Complainant is Allianz SE, Munich, Germany, internally represented.
The Respondents are Omar Guerrero, California, Los Angeles, United States of America / 1&1 Internet, Inc., Chesterbrook, Pennsylvania United States of America.
2. The Domain Name and Registrar
The disputed domain name <allianz-insurer.com> is registered with 1&1 Internet AG (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 22, 2012. On November 22, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 23, 2012, the Registrar 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 November 28, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 29, 2012.
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 November 29, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was December 19, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 27, 2012.
The Center appointed Francine Tan as the sole panelist in this matter on January 14, 2013. 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 states that it is the ultimate parent company of one of the oldest and largest international insurance and financial services groups in the world. The first company in the Allianz Group, Allianz Versicherungs-AG, was founded in 1890 in Berlin, Germany. In 1893, the first international branch, an office in London was opened. Since its inception, Allianz has continuously operated under the ALLIANZ name, and has used the ALLIANZ mark in connection with its insurance, healthcare and financial services products. It is one of the leading integrated financial services providers worldwide. With approximately 142,000 employees worldwide, the Allianz Group serves approximately 78 million customers in more than 70 countries. On the insurance side, Allianz is the market leader in the German market and has a strong international presence. Over the years, Allianz has devoted substantial resources and efforts building goodwill in the ALLIANZ family of trade marks.
The Complainant owns a number of registrations for the ALLIANZ mark. It submitted evidence of registrations of the mark in Germany, the European Community and many other countries designated under the Madrid Protocol.
In terms of domain name registrations, the Complainant has registered a number of them under the available generic top levels and country code domains (e.g. <allianz.de>, <allianz.com>, <allianz.us>, <allianz.fr> and <allianz-insurance.com>.
5. Parties’ Contentions
The grounds of the Complaint are:
(i) The disputed domain name is confusingly similar to the ALLIANZ trade mark in which the Complainant has rights. The disputed domain name and the ALLIANZ mark are partly identical. Internet users will recognize the famous corporate name and trade mark of the Complainant as it takes prominence at the beginning of the disputed domain name. Further, the descriptor “insurer” confirms such recognition by Internet users since the term “insurer” stands for the core business field of the Complainant, namely insurance services.
(ii) The Respondents have no rights or legitimate interests in the disputed domain name: the Respondents hold no trademark registrations for ALLIANZ and has never received a license or any other form of authorization or consent from the Complainant to make use of its trade mark; the Respondents’ activities do not correspond to any of the circumstances set forth in the Policy (paragraph 4(c)) that would evidence any rights to or legitimate interests in the disputed domain name; before having been notified of this dispute, the Respondents did not use the disputed domain name in connection with a bona fide offering of goods or services (to the best of the Complainant’s knowledge, the Respondents have not used the disputed domain name); the Respondents are not commonly known by the disputed domain name; the Complainant’s prior rights bar the Respondents from being known by the disputed domain name; and the Respondents are not making legitimate noncommercial or fair use of the disputed domain name.
(iii) The disputed domain name was registered and is being used in bad faith. The Respondents intentionally attempted, by using the disputed domain name, to attract, for commercial gain, Internet users to their website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the disputed domain name. The ALLIANZ trade mark is very well known, especially with regard to insurance and financial affairs. It cannot reasonably be argued that the Respondents could have been unaware of the trade mark when registering the disputed domain name. Upon the Complainant’s information and belief, the Respondents have intentionally and fraudulently attempted to pass themselves off as the Complainant and/or an affiliate of the Complainant in an effort to obtain significant amounts of money from unknowing individuals and continues to do so. Specifically, the Respondents have put themselves forth untruthfully as being the company, “Allianz Insurance LLC, Germany”. (Further particulars of this are mentioned herein below). Thus, the Respondents intend to make illegitimate profits by creating a likelihood of confusion with the Complainant's mark.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has, without doubt, rights in the trade mark ALLIANZ by virtue of its registered trade marks as well as by virtue of its long and extensive use.
Apart from the “.com” element and hyphen in the disputed domain name, both of which are irrelevant under the Policy, the only other difference between the Complainant’s ALLIANZ trade mark and the disputed domain name is the addition of the generic term “insurer”. The Panel finds that this term does not serve to differentiate the disputed domain name from the Complainant’s trade mark, bearing in mind the reputation of the Complainant’s name and trade mark and the fact the word “allianz” is the primary and distinctive element of the disputed domain name. The term “insurer” is also consistent with and describes the type of services the Complainant offers, which adds to the confusing similarity.
The Panel therefore finds that the disputed domain name is confusingly similar to the Complainant’s mark.
The first element of the Policy has been established.
B. Rights or Legitimate Interests
The Panel finds on the evidence submitted that the Complainant has established a prima facie case that the Respondents have no rights or legitimate interests in respect of the disputed domain name. The use and registration of the disputed domain name was not permitted nor authorized by the Complainant. There is also no evidence that the Respondents are commonly known by the disputed domain name.
The Complainant submitted evidence in support of its assertion of the reputation and highly distinctive character of its ALLIANZ mark, a piece of which consisted of a decision by the Oberlandesgericht Munchen (Higher Regional Court of Munich) dated November 25, 1999 in which the mark was held to have an extraordinarily high level of recognition in the general public. Another was a decision made by the Office for Harmonization in the Internal Market (OHIM) in a trademark opposition matter (No. 2819/2003) dated December 9, 2003 in which the mark was held to possess “overwhelming notoriety”. The Complainant also referred to the Best Global Brands study of 2011 in which the international marketing agency, Interbrand, ranked the brand ALLIANZ as No. 67.
Taking the aforesaid into account, the Panel is of the view that it would require an even higher threshold of clear and unequivocal evidence from the Respondents to prove that they have rights or legitimate interests in respect of the disputed domain name as it incorporates, in its entirety, a trade mark which is well known and a reference to services which the owner of the well-known mark in this instance offers.
In not having filed any response, the Panel has no basis to find otherwise, and in fact draws a negative inference against the Respondents. In arriving at its decision, the Panel has also noted the allegation of a fraudulent scheme involving the use of an email account emanating from the disputed domain name, i.e. […]@allianz-insurer.com, by “Allianz Insurance LLC, Germany”. The Complainant was informed by several private individuals in France that they had been contacted by “Allianz Insurance LLC, Germany” regarding online purchases of used cars. The Complainant sent a cease and desist letter to the Respondents in connection with this matter and to request that they to give up the registration of the disputed domain name. However, no response was received. The Complainant notified the French authorities in Paris having charge over consumer protection matters of this incident.
In view of the above, the Panel finds in the circumstances no evidence that the Respondents have rights or legitimate interests in respect of the disputed domain name.
The second element of the Policy has been established.
C. Registered and Used in Bad Faith
The Panel is satisfied, having due consideration of the circumstances in this case, that the Respondents registered the disputed domain name with the Complainant in mind and that the fact situation falls within paragraph 4(b)(iv) of the Policy:
“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location.”
The third element of the Policy has been established.
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 <allianz-insurer.com> be transferred to the Complainant.
Date: January 16, 2013