WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Allianz SE v. Privacy Protection Service - whoisproxy.ru / Sergey E. Vysotin
Case No. D2020-0490
1. The Parties
The Complainant is Allianz SE, Germany, represented internally.
The Respondent is Privacy Protection Service - whoisproxy.ru, Russian Federation / Sergey E. Vysotin, British Virgin Islands.
2. The Domain Name and Registrar
The disputed domain name <allianzarena.online> is registered with RU-CENTER-MSK (Regional Network Information Center, JSC dba RU-CENTER) (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 28, 2020. On February 28, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 2, 2020, 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 March 6, 2020, 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 March 6, 2020.
On March 6, 2020, the Center sent an email to the Parties in English and Russian regarding the language of the proceedings. On March 9, 2020, the Complainant requested that English be the language of the proceedings and provided additional arguments in support of its request. The Respondent has not provided any response regarding the language of the Proceedings.
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 in both English and Russian, and the proceedings commenced on March 24, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 13, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 14, 2020.
The Center appointed Taras Kyslyy as the sole panelist in this matter on April 22, 2020. 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 multinational financial services company headquartered in Munich, Germany. The Complainant is the parent company of one of the oldest and largest international insurance and financial services groups in the world. The Allianz group, funded in 1890, is one of the leading integrated financial services providers worldwide, serving to approximately 92 million consumers in more than 70 countries.
The Complainant is a market leader in the German insurance market and has a strong international presence. The Complainant states that since its inception it has continuously operated under the ALLIANZ mark to identify insurance, healthcare and financial services products.
The Complainant alleges it has directed substantial resources to build its trademark portfolio over the years. In this sense, the Complainant owns exclusive rights before ALLIANZ trademark and derivatives in different jurisdictions around the world, making it a distinctive and well-known sign. It owns for example the International trademark ALLIANZ Registration No. 447004 registered on September 12, 1979.
The Complainant holds naming rights for the large football stadium, called Allianz Arena, in Munich, Germany.
The disputed domain name was registered on August 1, 2019 and resolved to a website in English suggesting tickets for events at Allianz Arena. After the Complaint was filed and thereafter the website language was switched to Russian.
5. Parties’ Contentions
The disputed domain name is identical or confusingly similar to the Complainant’s trademark. The Internet user will recognize the famous corporate name and trademark of the Complainant in the disputed domain name.
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent does not hold any trademark registration for ALLIANZ mark and has never received a license or any form of authorization or consent from the Complainant to use the Complainant’s trademark. The Respondent is exploiting the fact that the Internet users are hoping to access a website or to communicate with someone who belongs to the Complainant’s group of companies. The Respondent is thus trading on the fame of the Complainant’s trademark, which is connected in public perception with insurance and financial services. Moreover, the Respondent is exploiting at his website the good name of the Complainant and take unfair advantage of the well-known Complainant’s trademark. The Respondent’s activities do not correspond to any of the circumstances, that would evidence any rights or legitimate interests in the disputed domain name. Before having been notified of the dispute the Respondent did 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. The Respondent is not making legitimate noncommercial or fair use of the disputed domain name.
The disputed domain name was registered and is being used in bad faith. By using the disputed domain name, the Respondent created a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the disputed domain name. It cannot be reasonably argued that the Respondent could not have been unaware of the famous Complainant’s trademark while registering the disputed domain name. The Respondent uses email address and the website at the disputed domain name to phish private data from individuals interested in the football ticket selling services.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Language of Proceedings
The language of the Registration Agreement for the disputed domain name is Russian. Paragraph 11(a) of the Rules provides that “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding”. The Panel may also order that any documents submitted in a language other than that of the proceeding be translated.
However, as noted by previous UDRP panels, paragraph 11 of the Rules must be applied in accordance with the overriding requirements of paragraphs 10(b) and 10(c) of the Rules that the parties are treated equally, that each party is given a fair opportunity to present its case and that the proceeding takes place with due expedition (see, e.g., General Electric Company v. Edison Electric Corp. a/k/a Edison Electric Corp. General Energy, Edison GE, Edison-GE and EEEGE.COM, WIPO Case No. D2006-0334).
In deciding whether to allow the proceedings to be conducted in a language other than the language of the Registration Agreement, and to require the Complainant in an appropriate case to translate the Complaint into the language of that agreement, the Panel must have regard to all “the relevant circumstances” of the case. The factors that the Panel should take into consideration include whether the Respondent is able to understand and effectively communicate in the language in which the Complaint has been made and would suffer no real prejudice, and whether the expenses of requiring translation and the delay in the proceedings can be avoided without at the same time causing injustice to the Parties.
According to section 4.5.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”) previous UDRP panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.
The Complainant has submitted a request that the language of the proceedings be English. The Complainant contends that the Respondent must be familiar with the English language since before the Complaint was filed the website at the disputed domain name was in English, and after the Complaint was filed it was switched to Russian.
The Panel further notes that no objection was made by the Respondent to the proceeding being in English nor any request made that the proceedings be conducted in Russian, the language of the Registration Agreement. This was despite the Center notifying the Respondent in Russian and English that the Respondent is invited to present its objection to the proceedings being held in English and if the Center did not hear from the Respondent by a certain date, the Center would proceed on the basis that the Respondent had no objection to the Complainant’s request that English be the language of the proceedings. The Respondent had the opportunity to raise objections or make known its preference but did not do so.
The Panel also finds that substantial additional expense and delay would likely be incurred if the Complaint had to be translated into Russian.
Taking all these circumstances into account, the Panel finds that it is appropriate to exercise its discretion and allow the proceedings to be conducted in English.
B. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in its registered trademarks.
The generic Top-Level Domain (“gTLD”) “.online” in the disputed domain name is viewed as a standard registration requirement and may be disregarded for the purposes of the confusing similarity test (see e.g., Rexel Developpements SAS v. Zhan Yequn, WIPO Case No. D2017-0275).
According to section 1.7 of the WIPO Overview 3.0 in cases where a domain name incorporates the entirety of a trademark the domain name will normally be considered identical or confusingly similar to that mark for purposes of UDRP standing. The Panel finds that the disputed domain name incorporates the entirety of the Complainant’s trademark.
According to section 1.8 of the WIPO Overview 3.0 where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The Panel finds that adding word “arena” to the disputed domain name does not preclude the confusing similarity.
Considering the above the Panel finds the disputed domain name is confusingly similar to the Complainant’s trademark, therefore, the Complainant has established its case under paragraph 4(a)(i) of the Policy.
C. Rights or Legitimate Interests
The Complainant has established prima facie that the Respondent has no rights or legitimate interests in the disputed domain name.
Furthermore, the Respondent provided no evidence that it holds a right or legitimate interest in the disputed domain name.
The Respondent is not commonly known by the disputed domain name, which could demonstrate its right or legitimate interest (see e.g., World Natural Bodybuilding Federation, Inc. v. Daniel Jones TheDotCafe, WIPO Case No. D2008-0642).
The Complainant did not license or otherwise agree for use of its prior registered trademarks by the Respondent, thus no actual or contemplated bona fide or legitimate use of the disputed domain name could be reasonably claimed (see e.g., Sportswear Company S.P.A. v. Tang Hong, WIPO Case No. D2014-1875).
Considering the above the Panel finds the Respondent does not have rights or legitimate interests in the disputed domain name. Therefore, the Complainant has established its case under paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad Faith
At the time of the registration of the disputed domain name the Respondent knew, or at least should have known about the existence of the Complainant’s prior registered and known trademark, which confirms the bad faith (see, e.g., The Gap, Inc. v. Deng Youqian, WIPO Case No. D2009-0113).
According to section 3.1.4 of the WIPO Overview 3.0 the mere registration of a domain name that is identical or confusingly similar to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith. The Panel is convinced that the Complainant’s trademark is well established through long and widespread use and the Complainant has acquired a significant reputation and level of goodwill in its trademark both in Germany and internationally. Thus, the Panel finds that the disputed domain name confusingly similar to the Complainant’s trademark was registered in bad faith.
According to paragraph 4(b)(iv) of the Policy the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location. In this case, the disputed domain name was resolving to a website featuring the Complainant’s trademark and falsely making an impression to be official Complainant’s website to intentionally attract Internet users by creating likelihood of confusion with the Complainant’s trademark as to the source of the website and its products. The Panel finds the above confirms the disputed domain name was registered and used in bad faith.
The Respondent ignored its possibility to comment on the contrary and provide any good explanation to prove its good faith while registering and using the disputed domain name.
Considering the above, the Panel finds the disputed domain name was registered and is being used in bad faith. Therefore, the Complainant has established its case under paragraph 4(a)(iii) of the Policy.
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 <allianzarena.online> be transferred to the Complainant.
Date: April 29, 2020