WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Allianz Worldwide Partners SAS, Allianz SE v. Registration Private, Domains By Proxy, LLC / Craig Myers
Case No. D2017-2151
1. The Parties
The Complainants are Allianz Worldwide Partners SAS of Saint Ouen, France and Allianz SE of Munich, Germany, represented by CSC Digital Brand Services Group AB, Sweden.
The Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States of America (“United States”) / Craig Myers of Southfield, Michigan, United States, self-represented.
2. The Domain Name and Registrar
The disputed domain name <allianzpartners.com> (the “Disputed Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 3, 2017. On November 3, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On November 5, 2017, 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 6, 2017, 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 8, 2017.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 9, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 29, 2017. On November 20, 2017, the Respondent requested an extension of the Response due date. In accordance with the Rules, paragraph 5(b), the Response due date was extended to December 3, 2017. The Response was filed with the Center on November 30, 2017.
The Center appointed Nick J. Gardner, Stephanie G. Hartung and Lynda M. Braun as panelists in this matter on December 26, 2017. The Panel finds that it was properly constituted. Each member of 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 Complainants are members of one of the oldest and largest international insurance and financial services groups in the world. Allianz SE is the parent company of the group and Allianz Worldwide Partners SAS is one of its subsidiaries. It is convenient to refer to the Complainants and their associated companies as the “Allianz Group”. The first company in the Allianz Group, Allianz Versicherungs-AG, was founded in 1890 in Berlin, Germany. Since its inception, the Allianz Group 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 140,000 employees worldwide. The Allianz Group serves approximately 78 million customers in more than 70 countries. In 2016 it had revenues in excess of EUR 122 billion. Over the years, the Allianz Group has devoted substantial resources and efforts building goodwill in the ALLIANZ brand and trademark.
The Complainant Allianz SE owns a number of trademark registrations for the word ALLIANZ, for example, United States Registration No. 2,256,628, registered on June 29, 1999. It also owns a number of trademarks which include the words “Allianz” and “partners” in combination with another word, for example, German Registration No. 30140661, for ALLIANZ CAPITAL PARTNERS, registered on November 2, 2001. These marks are referred to below collectively as the “ALLIANZ Trademarks”. The Complainants operate numerous websites, including in particular at “www.allianz.com” and “www.allianz-worldwide-partners.com”.
The Disputed Domain Name was registered on April 12, 2012. It has in the past been linked to a webpage with automatically generated pay-per-click (“PPC”) links. These included links to third party providers of insurance products. It currently links to a blank page
5. Parties’ Contentions
The Complainant’s contentions can be summarized as follows.
The Disputed Domain Name is similar to the ALLIANZ Trademarks.
The Respondent has no rights or legitimate interests in the term “ALLIANZ” or the ALLIANZ Trademarks.
The Disputed Domain Name has been registered and is being used in bad faith. Both passive holding and linking to pay-per-click web sites are evidence of bad faith registration and use.
The Response sets out in considerable detail and in extremely fulsome terms an account of business dealings in which the Respondent alleges he has been involved, and in which he alleges gave him the Complainants’ consent to register the Disputed Domain Name. In summary, the Respondent’s account is as follows:
The Respondent states that he has been involved in a partnership with another individual called David Polus. Their business involved the sale of life insurance and the training of other salesmen.
The Respondent states that Mr. Polus is an extremely successful and well-known insurance salesperson who has achieved widespread recognition for his talents in this regard. The Respondent is also involved in mentoring other salesmen and providing “inspirational guidance” to such persons.
The Respondent states that Mr. Polus was approached by a Mr. Cataldo of a company called Roster Financial LLC (“Roster Financial” or “Roster”) which was part of the Allianz Group. The Respondent states that Mr. Cataldo made to Mr. Polus an unsolicited proposal seeking to retain Mr. Polus to mentor and train Roster Financial’s sales force. The Respondent states that it was Mr. Cataldo on behalf of “Allianz/Roster” who first proposed that they (the Respondent and Mr. Polus) should adopt the name “Allianz Partners”. The account of what happened is long-winded and far from precise. The Panel thinks it simplest to quote verbatim what the Respondent says happened:
“Circa 2011-2012 Mr. Cataldo asked David Polus and Craig Myers to ‘firm up’ the offer to represent Allianz as Allianz Partners. Mr. Cataldo said our ability to market as Allianz Partners would substantially increase our share of the insurance marketplace. He said the prestige of becoming Allianz Partners within the insurance buying public. Mr. Cataldo said the U.S. insurance buying public would with proper marketing strategy eventually come to recognize the name Allianz as a premier financial services company.
David Polus and Craig Myers viewed Mr. Cataldo’s offer as an inducement on behalf of Roster Financial as
Allianz to gain for them a larger share of our insurance production as well as greater access to the many reps David Polus was mentoring. We found Mr. Cataldo’s offer attractive as we held Allianz in high regard. David and Craig considered Allianz one of the very best if not the very best insurance company in the marketplace. In fact, David and Craig own annuity and life contracts with Allianz with values well in the excess of seven figures. David and Craig concluded the ability to market as Allianz Partners would be a great advantage. David and Craig concluded over a five-year period they could conceivably produce Allianz insurance and annuity premium in the $500 million range. We knew marketing as Allianz Partners would add income to our bottom line as it would to Roster and Allianz.
At the time however, David explained to Mr. Cataldo that he had long, loyal and lasing friendly relationships with many marketing companies. Some of the marketing companies with whom David and Craig had relationships depended on their production for their survival. David and Craig explained to Mr. Cataldo it would be unfair and unprofessional to leave them cold so to speak. Of particular concern to David and Craig was the fact the aforementioned marketing companies treated them very fairly. David and Craig explained to Mr. Cataldo it would take some time to unwind these relationships in a kind and professional manner. Mr. Cataldo agreed and said he respected our position regarding this matter.
Mr. Cataldo said that in the interim he wanted to get ‘the ball rolling.’ He ordered Allianz stationary and
envelopes imprinted with the Allianz name and logo. (See Annex 9.7) He sent the stationary to us with our names, address, and telephone numbers imprinted. Mr. Cataldo told us we were the only reps in the entire Allianz system that had the permission to use the stationary. Allianz also provided Craig Myers a personalized Allianz golf bag with the intention of promoting the Allianz name. Craig is invited yearly to play golf in the Allianz Champions Tour Pro-Am tournament in Boca Raton, Florida. During the interim Roster/Allianz suggested David and Craig become preferred partners. Mr. Cataldo explained by signing a preferred partner contract it would enable us to recruit more reps to Roster/Allianz. Craig handled the administrative duties for the David Polus/Craig Myers partnership. David directed Craig to sign a preferred partner contract on behalf of the partnership. (See Annex 9.8) David began dissolving prior IMO relationships. He explained he and Craig were to become Allianz partners. It was our intention ultimately to be ‘all in’ with Allianz. Mr. Cataldo told David and Craig to ‘lock up’ the allianzpartners.com domain name. This would permit us to market, as partners under the Allianz umbrella. Mr. Cataldo directed Craig on behalf of the David Polus/Craig Myers partnership to apply for the domain name. Craig applied for and was granted the allianzpartners.com domain name”.
The Response then goes on to explain that in around 2012 Mr. Cataldo suffered a heart attack and ultimately another individual took his place. For reasons that are not explained it appears nothing was done with the Disputed Domain Name and Mr. Polus instead (according to the Response) went on to found an organization called the Independent Excellence Group (“IE Group”). According to the Response Mr. Polus currently “acts as Founder/President/Mentor/Trainer to all reps who qualify for mentorship in the IE Group. Current 2017 insurance and annuity production is over $800 million”. There is no suggestion that this business has anything to do with the Complainants. It is not clear to the Panel what the Respondent currently does for a living.
6. Discussion and Findings
As a preliminary issue the Panel notes this is a case where one of the Respondents (Domains by Proxy LLC.) appears to be a privacy or proxy registration service while the other Respondent (Craig Myers) appears to be the substantive Respondent. The Panel in this case adopts the approach of most UDRP panels, as outlined in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.4, as follows: “Most panels in cases involving privacy or proxy services in which such disclosure of an underlying registrant has occurred, appear to have found it appropriate to record in their issued decision both the name of the privacy or proxy registration service appearing in the WhoIs at the time the complaint was filed, and of any disclosed underlying registrant”.
In this case it is clear that Mr. Myers is the substantive Respondent and references in this decision to “the Respondent” are to Mr. Myers.
To succeed in these proceedings the Complainants must make out their case under paragraph 4(a) of the Policy. Namely, the Complainants must prove in respect of the Disputed Domain Name that:
(i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name (paragraph 4(a)(ii)); and
(iii) the Disputed Domain Name has been registered and is being used in bad faith (paragraph 4(a)(iii)).
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the ALLIANZ Trademarks.
The Respondent admits that the Disputed Domain Name is similar to the ALLIANZ Trademarks. The Panel finds that the Disputed Domain Name is confusingly similar to the ALLIANZ Trademarks. The word “Allianz” is the dominant term in the Disputed Domain Name and is combined with the non-distinctive word “partners”. In addition some of the ALLIANZ Trademarks themselves also include the word “partners”.
Previous UDRP panels have consistently held that domain names are identical or confusingly similar to a trademark for purposes of the Policy, “when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name” (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662). It is established that, where a mark is the distinctive part of a disputed domain name, the disputed domain name is considered to be confusingly similar to the registered mark (DHL Operations B.V. v. DHL Packers, WIPO Case No. D2008-1694).
It is also established that the addition of a descriptive term (such as here the word “partners”) to the disputed domain name has little, if any, effect on a determination of identity or confusing similarity between the domain name and the mark (Quixtar Investments, Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253). Furthermore, mere addition of a descriptive term does not exclude the confusing similarity (PRL USA Holdings, Inc. v. Spiral Matrix, WIPO Case No. D2006-0189). See also Mastercard International Incorporated v. Eric Hochberger, WIPO Case No. D2006-1050 and MasterCard International Incorporated v. Mike Morgan, WIPO Case No. D2008-1927 to similar effect.
It is also well established that the generic Top-Level Domain (“gTLD”) suffix “.com”, as in this case, is not generally taken into account for the purpose of determining whether a domain name is identical or confusingly similar to a trademark. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
Accordingly the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s Trademark and the first condition of paragraph 4(a) of the Policy has been fulfilled.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name:
(i) before any notice to the Respondent of the dispute, use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) the Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
None of these clearly apply in the present circumstances. However the list is non exhaustive and the issue which the Panel has to decide in the present case is whether the Complainants have authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name. The Complainant has prior rights in the ALLIANZ Trademarks, which precede the Respondent’s registration of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce relevant evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see, for example, Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
The Respondent for his part says that the events described in the Response (see above) amount to him having been “induced and instructed” to register the Disputed Domain Name. Looking at the evidence as a whole the Panel on the balance of probabilities does not accept the explanation offered by the Respondent. The Panel is conscious that proceedings under the UDRP are of a limited and restricted nature, do not involve oral hearings, discovery or cross examination, are only applicable to clear cut cases, and it is not usually appropriate to decide disputed questions of fact or matters of truth or falsehood. That does not mean, however, that the Panel cannot reach a conclusion as to the veracity of a case that is being advanced where the only evidence that is provided is in the form of conclusory statements that are inherently not credible, and which are not supported by relevant corroborative or third party evidence. The Panel considers this to be such a case. The Respondent’s case is simply not credible. The Panel reaches this conclusion for the following reasons:
The Response is a long and involved story, taking place over many years and is supported only by the Respondent’s own account of what he says happened. No evidence has been provided by any of the other individuals involved, including in particular Mr. Polus. The Panel in this regard notes that the Response states “I have asked my distinguished partner, David F. Polus to assist me with this Response” but no statement or other formal evidence has been provided by Mr. Polus.
In addition no credible documentary evidence supporting the Respondent’s account has been provided (see further below as to the evidence that has been provided).
Taking the Respondent’s account at face value it seems inherently unlikely that an organization of the size and nature of the Complainants would apparently grant rights to use their name as part of the Disputed Domain Name in the informal manner the Respondent suggests, to two individual salesmen and (according to the Response) to the exclusion of all others. It also seems unlikely that any such arrangement would be put into place by a low level subsidiary of the Allianz Group where that subsidiary did not itself even use the Allianz name.
It also seems unlikely that the chief executive of a subsidiary member of the Allianz Group, namely Roster Financial, would have the power or authority to grant rights in the manner the Respondent says happened.
It further stretches credibility to note that the Respondent has never done anything with the Disputed Domain Name and has never in fact pursued the business venture which he says was envisaged.
In various places the Respondent conflates Roster Financial with the Complainants by referring to material as being produced by “Roster/Allianz”. That is misleading – see below for a discussion of the individual documents relied upon by the Respondent.
Whilst the above factors on their own give rise to considerable doubt as to the veracity of the Respondent’s account, what undermines the Respondent’s case, according to the Panel, is the complete lack of any contemporaneous documentation reflecting this supposed arrangement – the Panel would have expected there to have been some formal documentation drawn up, or at the very least some correspondence about it, whether produced by the Complainants, Roster Financial, the Respondent or Mr. Polus. In this regard it is instructive to look at the documentary material the Respondent in fact annexed to the Response. It comprises the following:
a) Documents showing that as of 2011 Roster Financial LLC was one (of many) subsidiaries of the Complainant’s North American business. It is (according to these documents) a subsidiary at the fifth level, with second, third and fourth level holding companies interposed between it and Allianz SE in the corporate structure. It is one of eighteen such companies at that level shown on the documentation in question.
b) Contracts appointing the Respondent and Mr. Polus as sales agents for Allianz Life Insurance Company of North America. These appear to be standard form documents and have nothing to do with the Disputed Domain Name.
c) A letter nominating Mr. Polus for an industry award. This seems of no relevance except perhaps as some form of background.
d) A flyer promoting Mr. Polus’ motivational talks. This is issued by Roster Financial and bears Mr. Cataldo’s name but says nothing about the Complainants nor does it suggest that Mr. Polus is anything but an independent speaker.
e) Another brochure again promoted by Roster Financial advertising talks by Mr. Polus. Again the Complainants are not featured in this material.
f) An invoice by a company called Driven to Roster Financial for marketing activities. It is accompanied by a table of invoice details. This material all seems irrelevant.
g) Another advertisement by Roster Financial promoting talks by Mr. Polus. Again nowhere does the Allianz name appear on it.
h) Pictures of two business cards in the name of Mr. Myers and Mr. Polus bearing the Allianz name and logo, together with pictures of stationery in similar form. The Respondent’s card bears an email address at <yahoo.com> on it. Mr. Polus’ card has no email address.
i) A picture of a golf bag with the Respondent’s name on it and the Allianz name and logo.
j) A field marketing agreement issued by Allianz Life insurance Company of North America and said to be signed by the Respondent. This again appears to be a standard form document and has nothing to do with the Disputed Domain Name.
k) IE Group marketing material that has nothing to do with the Complainants or the Disputed Domain Name.
It is in the opinion of the Panel impossible to reconcile the Respondent’s case with the complete lack of any material at all confirming the supposed granting of permission to register the Disputed Domain Name or to use the business name “Allianz Partners”. Indeed nowhere in any of this material is the Disputed Domain Name even mentioned. The main thrust of the material is to establish that Mr. Polus is well-known and has from time to time been promoted by Roster Financial as a motivational speaker, and Mr. Polus and the Respondent have apparently been engaged by the Complainants’ North American business as independent salespersons on standard form contracts of no relevance to the Disputed Domain Name. This comes nowhere close to showing that the Respondent had been given permission to register the Disputed Domain Name. The only material of any real relevance at all is the business cards and stationery and possibly the golf bag. The Response says these were “given” to the Respondent by Roster Financial but no covering correspondence or other material is provided to explain the context of this material. Even this stationery does not bear the Disputed Domain Name. No allegation is made that this stationery has ever been used, or that Mr. Polus and the Respondent have developed any sort of business using the Allianz name or the Disputed Domain Name. The existence of this material raises more questions than provides answers, and without relevant contemporaneous documents or corroborating evidence, the Panel is unwilling to rely upon this as support for a supposed agreement which granted the Respondent the right to register the Disputed Domain Name.
All of the above led the Panel to regard the Respondent’s case with considerable skepticism and to conclude that the Respondent had not met the burden of discharging the inferences raised by the Complainants’ case.
However in addition to this material the Respondent’s case was further weakened by the evidence before the Panel as to what took place when the Complainants issued a cease and desist letter. A letter was sent on August 8, 2017 to the First Respondent on behalf of the Complainants, complaining about the Disputed Domain Name. No reply was received. A further similar letter was sent on August 23, 2017. The Respondent replied in the form of the following email:
“On Tue, Aug 15, 2017 at 10:54 PM, Annuity Life <[…]@gmail.com> wrote:
Thank you for your reaching out regarding allianzpartners.com.
Over the last 14 years I have utilized Allianz Life of North America’s life insurance and annuity products as a licensed insurance agent with Allianz Life of North America (hereinafter ‘ALNA’).
I have invested substantial time, effort, and resources in developing the brand awareness and building a profitable distribution source for ALNA.
In the year 2011 ALNA approached me to become a preferred distribution partner, which I accepted. This partnership is to help recruit other agents to sell ALNA’s insurance products as well as build the positive image of Allianz in North America and brand ALNA as a premier insurance company and to generate revenue and profitable gain for ALNA.
I fairly and legally purchased allianzpartners.com with the intent on building the positive reputation of ALNA and recruiting more agents to sell, distribute and promote ALNA. I purchased this domain in good faith to help ALNA distribute the offering of their insurance and annuity products. The products are purchased directly from ALNA and I am listed as the servicing agent and I am commonly referred to as an agent/representative of ALNA. My duties include but are not limited to recruiting agents/representatives to ALNA, prospecting and selling ALNA insurance products and promoting the positive public image of ALNA.
I understand you are unaware of the above do to the fact of my Private Registration through Domains By Proxy, LLC. and therefore I do not take this letter as threatening. Because of my affiliation with ALNA I am going to continue to keep my identity private.
Nonetheless, I would prefer also to resolve this matter in an amicable fashion and therefore if AWP feels they can better the Allianz name they are welcome to purchase the domain allianzpartners.com from me.
Please respond to me within 10 days at the email address from which this letter is sent if AWP would like to purchase allianzpartners.com.
It seems to the Panel extraordinary that the Respondent, whilst indicating he had a positive case and had registered the Disputed Domain Name fairly as part of his activities in association with the Complainants’ North American business, declined to reveal his true identity and instead offered to sell the Disputed Domain Name to the Complainant. If matters were as the Respondent claims the Panel would have expected the Respondent to disclose his identity and explain properly why he was entitled to register the Disputed Domain Name.
In fact further correspondence followed from the Complainants’ representatives making exactly this point, but no further reply was received from the Respondent. The Panel would have expected any bona fide business to be quick to point out fully and openly who they were and what all of the relevant facts were. The Respondent’s unwillingness to do so when challenged confirms the Panel’s finding that he has failed to establish rights or legitimate interests in the Disputed Domain Name.
The Panel would also add that the Respondent’s status as an appointed agent of the Complainants’ North American business (assuming that was the position) does not give him any rights or legitimate interests in the Disputed Domain Name. In that regard his adoption of the Disputed Domain Name would, in the opinion of the Panel, engage the well-known “Oki Data test”. This is explained in the WIPO Overview 3.0, section 2.8.1, as follows:
“Panels have recognized that resellers, distributors, or service providers using a domain name containing the complainant’s trademark to undertake sales or repairs related to the complainant’s goods or services may be making a bona fide offering of goods and services and thus have a legitimate interest in such domain name Outlined in the “Oki Data test”, the following cumulative requirements will be applied in the specific conditions of a UDRP case:
(i) the respondent must actually be offering the goods or services at issue;
(ii) the respondent must use the site to sell only the trademarked goods or services;
(iii) the site must accurately and prominently disclose the registrant’s relationship with the trademark holder; and
(iv) the respondent must not try to “corner the market” in domain names that reflect the trademark.
The Oki Data test does not apply where any prior agreement, express or otherwise, between the parties expressly prohibits (or allows) the registration or use of domain names incorporating the complainant’s trademark”.
In the present case it is not clear to the Panel whether (i) applies but in any event given that the Respondent has not at any stage developed any sort of website to give effect to the business arrangement that he says was contemplated, and so conditions (ii) and (iii) are not satisfied.
Accordingly the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled.
C. Registered and Used in Bad Faith
The Panel does not consider that the Respondent’s registration and use of the Disputed Domain Name was in good faith. It seems to the Panel that the Respondent registered the Disputed Domain Name opportunistically and lacking a legitimate interest (see above) and has then used it only by either linking it to a PPC parking page or holding it passively. Either of these activities is, under these circumstances, sufficient to support a finding of registration and use in bad faith (see below).
“Can third-party generated material ‘automatically’ appearing on the website associated with a domain name form a basis for finding bad faith?
Particularly with respect to ‘automatically’ generated pay-per-click links, panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name (nor would such links ipso facto vest the respondent with rights or legitimate interests).
Neither the fact that such links are generated by a third party such as a registrar or auction platform (or their affiliate), nor the fact that the respondent itself may not have directly profited, would by itself prevent a finding of bad faith.
While a respondent cannot disclaim responsibility for links appearing on the website associated with its domain name, panels have found positive efforts by the respondent to avoid links which target the complainant’s mark (e.g., through ‘negative keywords’) to be a mitigating factor in assessing bad faith”.
In the present case the PPC page appears to be automatically generated, with links to third party insurance providers. There is no evidence that the Respondent took any positive action to limit such links.
“Can the ‘passive holding’ or non-use of a domain name support a finding of bad faith?
From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or ‘coming soon’ page) would not prevent a finding of bad faith under the doctrine of passive holding.
While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case the Respondent is passively holding the Disputed Domain Name. The Respondent also hid his identity by using a privacy service and declined to reveal that identity when challenged, whilst at the same time offering to sell the Disputed Domain Name to the Complainants. In the opinion of the Panel, such conduct amounts to evidence of bad faith registration and use.
Accordingly the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith and the third condition of paragraph 4(a) of the Policy has been fulfilled.
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 <allianzpartners.com> be transferred to the Complainant Allianz SE.
Nick J. Gardner
Stephanie G. Hartung
Lynda M. Braun
Date: January 2, 2018