WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Allianz SE v. Domain Admin, Whois protection / Domain Administrator, Radio plus, spol.s r.o.
Case No. D2017-2277
1. The Parties
Complainant is Allianz SE of Munich, Germany, internally represented.
Respondent is Domain Admin, Whois protection of Prague, Czech Republic / Domain Administrator, Radio plus, spol.s r.o., of Prague, Czech Republic, self-represented.
2. The Domain Name and Registrar
The disputed domain name <agcs.com> is registered with Gransy, s.r.o. d/b/a subreg.cz (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 16, 2017. On November 16, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 20, 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 Complainant on November 30, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed a first amended Complaint on December 1, 2017. Complainant filed a second amended Complaint on December 5, 2017.
The Center verified that the Complaint together with the first and second amended Complaints 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 Respondent of the Complaint, and the proceedings commenced on December 11, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 31, 2017. The Response was filed with the Center December 31, 2018.
The Center appointed Georges Nahitchevansky, The Hon Neil Brown Q.C. and Ana María Pacón as panelists in this matter on February 20, 2018. 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
Complainant, Allianz SE, is the ultimate parent company of the Allianz insurance and financial services group (the “Allianz Group”). The Allianz Group is a global provider of financial and insurance services serving approximately 85 million customers in more than 70 countries. Complainant has used the ALLIANZ mark in connection with its insurance, healthcare and financial services since 1890.
Complainant is the owner of a subsidiary in Germany known as Allianz Global Corporate & Specialty SE which offers a full range of products and services covering corporate and specialty insurance worldwide. Allianz Global Corporate & Specialty SE was created in 2006 and at some point commenced using the acronym AGCS to refer to itself. Allianz Global Corporate & Specialty SE currently operates a website providing information concerning its services at <agcs.allianz.com>, as well as a portal for its clients to manage their accounts at <myagcs.com>.
Respondent, Radio plus, spol.s.r.o., registered the disputed domain name on May 31, 2010. Currently, the disputed domain name does not resolve to an active website or web page. At some point in the past, the disputed domain name resolved to a website with click through links on various topics, such as games, home businesses, online jobs and software. The website at the disputed domain name also included, at one point, a link with the German word “Allianz.”
5. Parties’ Contentions
Complainant asserts that its wholly-owned subsidiary Allianz Global Corporate & Specialty SE is commonly known as AGCS SE and that the acronym AGCS is now recognized in the financial world as referring to Allianz Global Corporate & Specialty SE. Complainant also asserts that the ALLIANZ mark is a well-known mark that has been registered in numerous jurisdictions prior to the registration of the disputed domain name.
Complainant argues that the disputed domain name is identical or confusingly similar to Complainant’s AGCS acronym and trademark as it fully consists of AGCS. Complainant also argues that the disputed domain name is likely to cause confusion as Internet users are likely to recognize AGCS as referring to Allianz Global Corporate & Specialty SE and ultimately the ALLIANZ brand.
Complainant argues that Respondent lacks any rights or legitimate interests in the disputed domain name because Respondent (a) has only used the disputed domain name with a web page of links, the first of which features the word “Allianz,” (b) does not own a trademark registration or application for any ALLIANZ mark, (c) is not commonly known by the disputed domain name, (d) is barred from being known by the disputed domain name on account of Complainant’s prior rights, and (e) is not making a legitimate business non-commercial use of the disputed domain name.
Finally, Complainant asserts that Respondent has acted in bad faith since Respondent had sought to exploit and “free ride” on Complainant’s rights in its name for profit by using the disputed domain name with a website that included multiple links, including one that referenced the word “Allianz.” Complainant also argues that given the fame of the ALLIANZ mark, Respondent could not have been unaware of Complainant’s rights when it registered the disputed domain name and then used it with a click through linking portal that included a reference to “Allianz.”
Respondent contends that it registered the disputed domain name in May 2010 because it has an intrinsic value as a 4-letter “.com” domain name.
Respondent argues that Complainant does not own any trademark registration for AGCS and has not filed any trademark applications to register its claimed AGCS mark. Respondent maintains that Complainant has tried to obfuscate that fact by relying primarily on its rights in the ALLIANZ brand. Respondent also argues that Complainant has provided no evidence that would show by a preponderance of the evidence that the public has come to perceive AGCS as a trademark related to Complainant.
Respondent maintains that it has a legitimate interest in the disputed domain name because short 4-letter domains such as the disputed domain name constitute valuable property. As such, Respondent argues that it is has a legitimate interest in registering and then selling the disputed domain name as a form of valuable property.
Respondent contends that it has not registered or used the disputed domain name in bad faith. Respondent argues that the disputed domain name has an intrinsic value as a 4-letter “.com” domain name. Respondent also asserts that it never heard of AGCS until the instant proceeding was initiated by Complainant, and that the disputed domain name was registered some years before Complainant registered the domain name <myagcs.com> and/or used that domain name with a live website. Respondent maintains that the appearance of the reference “Allianz” as a link on the website at the disputed domain name was not due to any action by Respondent, but as a result of auto-optimization from the parking service Respondent used. Lastly, Respondent argues that there are many other parties around the world that use “AGCS” as an acronym, and that there are numerous domain names not owned by Complainant that consist solely of AGCS, including the domain name <agcs.de> in Germany where Complainant is based.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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.
The standard of proof under the Policy is often expressed as the “balance of the probabilities” or “preponderance of the evidence” standard. Under this standard, an asserting party needs to establish that it is more likely than not that the claimed fact is true. The touchstone, however, is that an asserting party cannot meet its burden by simply making conclusory statements unsupported by evidence. To allow a party to merely make factual claims without any supporting evidence would essentially eviscerate the requirements of the Policy as both complainants or respondents could simply claim anything without any proof. For this reason, Panels have generally dismissed factual allegations that are not supported by any bona fide documentary or other credible evidence.
A. Complainant’s Rights in AGCS
Complainant claims rights in AGCS on the basis that Complainant has used AGCS as an acronym for its wholly-owned subsidiary Allianz Global Corporate & Specialty SE and that AGCS is now recognized in the financial world as standing for Allianz Global Corporate & Specialty SE. In support of those contentions, Complainant has provided (i) what appears to be a December 11, 2017 power point presentation concerning Allianz Global Corporate & Specialty SE that was created by Complainant, and (ii) a November 15, 2017 printout of the home page of Complainant’s website at <myagcs.com>. Both of these submissions show some use of AGCS by Complainant in late 2017.
Notably, while Complainant claims that AGCS is a name and mark that is well-known in the financial world referring to its subsidiary Allianz Global Corporate & Specialty SE, Complainant has not submitted any evidence to support that contention. Moreover, while Complainant maintains that its subsidiary Allianz Global Corporate & Specialty SE was created in 2006 and eventually became commonly known as AGCS SE, no evidence was submitted by Complainant (i) showing any use of AGCS by Complainant as an acronym or trademark prior to November 15, 2017, or (ii) supporting the claim that Allianz Global Corporate & Specialty SE was commonly known as AGCS at any time prior to November 2017.
As Complainant does not own any trademark registrations for the name AGCS, and does not appear to have ever filed a trademark application for AGCS, it is incumbent on Complainant to establish that it owns unregistered or common law rights in AGCS. To be sure, a complainant cannot establish unregistered or common law rights in an alleged mark by virtue of conclusory or unsubstantiated allegations. A complainant must show with specific evidence that an unregistered or common law mark has become a distinctive identifier which consumers associate with a complainant’s goods and/or services. See WIPO Overview 3.0, section 1.3. Here, Complainant has failed to meet its burden as it has provided no evidence supporting, for example, its contentions that AGCS is well-known in the financial world or that AGCS has come to be known by consumers as identifying Complainant’s wholly-owned subsidiary Allianz Global Corporate & Specialty SE. At best, Complainant has merely established that it is using AGCS as a mark in late 2017.
The Panel notes that Complainant’s reliance on its trademark registrations and brand rankings for the ALLIANZ mark, and on prior UDRP decisions regarding domain names incorporating the ALLIANZ mark, is misplaced. At issue in this proceeding is whether Complainant owns rights in the AGCS mark, not whether Complainant owns rights in the ALLIANZ mark. Complainant attempts to side-step the issue by arguing that because the ALLIANZ mark is well-known consumers will perceive AGCS, which is used as an acronym to refer to Complainant’s subsidiary Allianz Global Corporate & Specialty SE, as connected to the ALLIANZ mark and name. Such argument is likewise misplaced. The fundamental flaw in Complainant’s contention is that Complainant needs to first show that AGCS is perceived by consumers as referring to Allianz Global Corporate & Specialty SE and/or to Complainant. As Complainant submitted no evidence in that regard, the entire argument fails. Simply put, Complainant’s evidence regarding the ALLIANZ mark is irrelevant in a proceeding involving alleged rights in AGCS.
B. Identical or Confusingly Similar
The threshold for satisfying this first element is sometimes expressed as a “low” one and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold. As noted above, Complainant has, at best, established that it has some rights in AGCS as of late 2017. Thus, for purposes of paragraph 4(a)(i) of the Policy only, as the Policy only requires the Panel to find if Complainant “has” a trademark, not whether it “had” one at a previous time, the Panel is willing to find that Complainant has established sufficient rights for purposes of the first element and that the disputed domain name that fully consists of AGCS is identical or confusingly similar to Complainant’s claimed AGCS acronym or mark.
C. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name (Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393). Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
In assessing whether a respondent has rights or legitimate interests is a disputed domain name, the relevant time for the assessment is the date of the filing of the complaint (see section 2.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). In this matter, the use of the disputed domain name with a click through revenue portal that includes a link with the name and mark “Allianz” could be seen as an attempt to monetize the web traffic that flows through the disputed domain name. Such use of the disputed domain name for profit does lend some support to the notion that Respondent is not making a bona fide use of the disputed domain name and does not have a legitimate interest in the disputed domain name – particularly as Respondent is also seeking to sell the disputed domain for profit.
That being said, the evidence submitted by Complainant, however, only shows an undated instance of the use of the disputed domain name in connection with a website full of links unrelated to Complainant that also includes a reference to the German word “Allianz”. There is no evidence that Respondent purposefully used the disputed domain name after registering it in May 2010 to take advantage of any rights that Complainant might have in AGCS – as opposed to trying to profit from a 4-letter “.com” domain name that could be seen as having an intrinsic and substantial value as a short domain name.
At this point, the Panel is split as to whether Respondent has legitimate rights or interests in the disputed domain name (Panelist Brown finding that it does and Panelist Pacón and the Presiding Panelist finding that it likely does not). Given the Panel’s finding under the next element of paragraph 4(a) of the Policy, however, it is unnecessary for the Panel to make a determination as to Respondent’s rights or legitimate interests.
D. Registered and Used in Bad Faith
Under paragraph 4(a)(iii) of the Policy, a complainant must establish the conjunctive requirement that the respondent registered and used the disputed domain name in bad faith. However, unlike the assessment of a respondent’s legitimate rights or interests in a disputed domain name, which have to be assessed at the time of the complaint, the question of whether a disputed domain name was registered in bad faith has to be assessed at the time of the registration of the disputed domain name by the respondent.
As Respondent registered the disputed domain name in May 2010, in order for Complainant to prevail it needs to establish that it had rights in AGCS as a trademark prior to May 2010. Complainant, as noted above, has failed to submit any evidence to support the contention that it owned any rights in AGCS prior to May 31, 2010, the date when Respondent registered the disputed domain name. Consequently, Complainant has failed to meet is burden of showing that Respondent registered the disputed domain name in bad faith, as Respondent could not have acted in bad faith to take an advantage of an alleged AGCS mark that does not appear to have been in existence as of May 2010.
Accordingly, Complainant has failed to establish the third element under the Policy and the Complaint must be dismissed.
E. Reverse Domain Name Hijacking
Although Respondent has not expressly requested a finding that Complainant has engaged in Reverse Domain Name Hijacking (“RDNH”), Respondent has requested that the Panel find that the Complaint was brought in bad faith by Complainant. The Panel thus construes Respondent’s submission as requesting a finding of RDNH.
Paragraph 15(e) of the Rules provides that if “after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at RDNH or was brought primarily to harass the domain name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding”. Moreover, under paragraph 1 of the Rules RDNH is defined as “using the Policy in bad faith to attempt to deprive the registered domain name holder of a domain name”.
To be sure, when a complaint has failed, such does not result in an automatic finding of RDNH. The touchstone under Rule 15(e) is for a panel to determine whether the complaint constitutes an abuse of the administrative proceeding.
Here, Complainant made numerous allegations concerning its rights in AGCS, and how well-known AGCS has become as referring to Allianz Global Corporate & Specialty SE, that Complainant completely failed to support with any evidence. Instead, Complainant put in numerous registrations, UDRP decisions and brand rankings concerning the ALLIANZ mark that were completely irrelevant to the proceeding and whether Respondent has any rights in AGCS.
In addition, Complainant was well aware that Respondent registered the disputed domain name in May 2010. However, Complainant made no attempt to prove any rights in AGCS prior to May 2010 and only provided evidence of its use of AGCS in late 2017. In view of the fact that Complainant has filed numerous successful UDRP complaints involving the ALLIANZ mark (copies of which were submitted as evidence by Complainant), it seems likely that Complainant was aware of the applicable standard of bad faith registration and use in a UDRP proceeding and had some idea of what evidence would be needed in regards of its claimed AGCS mark in order to prevail.
Given the fact that Complainant glossed over its rights in AGCS with unsubstantiated and conclusory allegations and claimed priority based on the ALLIANZ trademark makes it more likely than not that Complainant was, or should have been aware, that it did not have sufficient rights in AGCS to succeed in a UDRP proceeding, but was hoping that the Panel would somehow find otherwise. Simply put, the facts in this proceeding demonstrate that Complainant clearly ought to have known it could not succeed under any fair interpretation of the facts reasonably available prior to the filing of the Complaint and that basing its Complaint on the barest of allegations without any supporting evidence – such as claiming bad faith registration of the disputed domain name by Respondent with no proof of Complainant’s rights in the AGCS mark prior to May 2010 (and only showing use of AGCS by Complainant seven years after Respondent registered the disputed domain name) – was doomed to fail (WIPO Overview 3.0, section 4.16).
Accordingly the majority of the Panel (the Presiding Panelist and Panelist Brown) finds that the Complainant has abused the administrative proceeding and engaged in reverse domain name hijacking.
For the foregoing reasons, the Complaint is denied.
The Hon Neil Brown Q.C.
Ana María Pacón
Date: March 7, 2018