WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Allianz SE v. Bill Kergants/Whois Agent, Whois Privacy Protection Service, Inc.
Case No. D2014-1822
1. The Parties
The Complainant is Allianz SE, of Munich, Germany, represented internally.
The Respondent is Bill Kergants of Zurich, Switzerland / Whois Agent, Whois Privacy Protection Service, Inc., of Kirkland, Washington, United States of America.
2. The Domain Name and Registrar
The disputed domain name <allianzadvisory.com> is registered with Name.com LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on October 17, 2014. On October 17, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 17, 2014, 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 October 20, 2014 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 October 20, 2014.
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 October 23, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 12, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 13, 2014.
The Center appointed Knud Wallberg as the sole panelist in this matter on November 19, 2014. 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 is a German company, which is one of the oldest and largest international insurance and financial services firms in the world. Since its inception, it has continuously operated under the name of Allianz, and has used the ALLIANZ mark in connection with its insurance, healthcare and financial services products. Over the years, it has devoted substantial resources and efforts to building goodwill in the ALLIANZ family of marks, which is used to distinguish Allianz's products from all other products in the same class.
The Complainant owns exclusive rights in the ALLIANZ mark and derivatives thereof in many jurisdictions around the world and offers a wide range of insurance, underwriting, reinsurance, and financial services under the said mark.
The Complainant also holds a number of domain names that incorporate the mark.
5. Parties’ Contentions
With regard to the first requirement (paragraph 4(a)(i) of the Policy), the Complainant alleges that the disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights, since it contains the Complainant’s mark ALLIANZ with the addition of the generic term “advisory”.
With regard to the second requirement (paragraph 4(a)(ii) of the Policy), that the Respondent has no rights or legitimate interests in respect of the disputed domain name, the Complainant asserts that the Respondent holds no trade mark registrations for any “Allianz” mark and has never received a license or any other form of authorization or consent from the Complainant to make use of the ALLIANZ mark.
The Complainant also asserts that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent does thus not use the disputed domain name in connection with a bona fide offering of goods or services; the Respondent is not commonly known by the disputed domain name, nor is the Respondent not making a legitimate noncommercial or fair use of the disputed domain name.
With regard to the third requirement (paragraph 4(a)(iii) of the Policy) that the disputed domain name was registered and used in bad faith, the Complainant asserts that Allianz is a well-known trademark and that the Respondent could not have been unaware of the trademark when registering the disputed domain name. This is supported by the fact that the Respondent has combined the German term “Allianz” with the English term “advisory”.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the statements and documents submitted by the parties.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements are satisfied:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
A. Identical or Confusingly Similar
The disputed domain name <allianzadvisory.com> combines the Complainant’s registered trademark ALLIANZ in its entirety with the addition of the generic term “advisory”.
The Panel finds that the disputed domain name <allianzadvisory.com> is confusingly similar (in the sense of the Policy) to the Complainant’s registered trademark because it contains the mark in its entirety. The addition of the generic term “advisory” as suffix to the trademark to form the disputed domain name does not, to this Panel, dispel a finding of confusing similarity. It has also long been held by UDRP panels that the gTLD suffix does not preclude a finding of confusing.
The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled in relation to the disputed domain name.
B. Rights or Legitimate Interests
According to the Complaint, the Complainant has not licensed or otherwise permitted the Respondent to use its trademark.
Given the circumstances of this case, the Panel is of the opinion that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not rebutted this and the Panel finds that it is unlikely that what appears to be an individual person with residence in Switzerland is doing business under the name “Allianz Advisory” in the United Arab Emirates as is otherwise stated on the website under the disputed domain name “www.allianzadvisory.com”.
Consequently, the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy are also fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides an example of circumstances which shall be evidence of registration and use in bad faith:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s website or location or of a product or service on the holder’s website or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
Given the circumstances of the case, in particular the extent of use of the Complainant’s trademark, and the reputation of the mark, inter alia in the country of residence of the Respondent, Switzerland, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant’s mark. Further, the Panel finds that the Respondent could not have been unaware of the fact that the disputed domain name it chose could attract Internet users in a manner that is likely to create confusion for such users.
The Panel therefore finds that the disputed domain name was registered in bad faith.
With regard to the use in bad faith, the disputed domain name is used for an active, and professionally designed website, on which the Respondent claims to be “an independent financial advisory service” that provides access to “the full spectrum of products within the ambit of the investment market, and asset management. Also, the Complainant claims, and the Respondent has not rebutted this claim, that Respondent has contacted members of the public by telephone purporting to work for the Complainant. Although it is not immediately evident what the purpose of such calls may be, this behavior does without doubt disrupt the business of the Complainant.
Noting that the disputed domain name incorporates a well-known trademark, that no response has been filed, and that there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain name, and considering all the facts and evidence, the Panel therefore finds that the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case.
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 <allianzadvisory.com> be transferred to the Complainant.
Date: December 2, 2014