WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ageas SA/NV v. ABEL TOURE
Case No. D2020-1073
1. The Parties
The Complainant is Ageas SA/NV, Belgium, represented by Gevers Legal NV, Belgium.
The Respondent is ABEL TOURE, Ivory Coast.
2. The Domain Name and Registrar
The disputed domain name <ageasfund-group.org> 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 April 30, 2020. On May 1, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 1, 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 May 5, 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 May 8, 2020.
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 May 13, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 2, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 3, 2020.
The Center appointed Antony Gold as the sole panelist in this matter on June 16, 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 multinational insurance company with its headquarters in Brussels, Belgium. It has approximately 39 million customers and it provides insurance services in 14 countries, either directly or in partnership with other entities. In 2019, its group net result was EUR 979 million.
The Complainant has used the trading style AGEAS since 2010 and it has registered many trade marks in multiple jurisdictions to protect its brand. These include, by way of example, Benelux trade mark registration number 0873934 for AGEAS (word mark) registered on March 31, 2011 in relation to services in class 36.
The disputed domain name was registered on January 31, 2020. For a period of time it resolved to an active website, the home page of which contained a banner headed “AGEAS Funds Groups ”, underneath which appeared the claim: “We have the solution to YOUR FINANCIAL PROBLEM”. The remaining web pages contained information typical of those likely to be found at the website of a financial institution offering loans to the public, such as a description of the types of loans which were ostensibly available and reviews, seemingly from satisfied customers, of the Respondent’s services. The Complainant has found four other websites, the form and content of which are almost identical to the Respondent’s website, save that the names of the companies purporting to offer the loans differ in each instance and the content of three of those websites is written in other languages, namely French, Dutch, and Spanish. However, in all other respects, the similarities are very close. By way of example, the names of the customers seemingly providing testimonials, as well as the testimonials themselves, are the same in many cases.
Prior to the filing of the amended Complaint by the Complainant with the Center, the Respondent’s website was taken down by the Registrar following the filing with it of a claim for trade mark infringement by the Complainant.
5. Parties’ Contentions
The Complainant says that the disputed domain name is identical or confusingly similar to a trade mark or service mark in which it has rights. The generic Top-Level Domain (“gTLD”) “. org” can be disregarded as it is a necessary component for the registration and use of a domain name. The second-level portion of the disputed domain name contains the Complainant’s AGEAS mark in its entirety, followed by the word “fund”, a hyphen and, lastly, the word “group”. Since the disputed domain name includes the Complainant’s AGEAS mark in full, it is clear that the disputed domain name is identical, or at least confusingly similar, to the Complainant’s trade mark registrations. The additional words “fund” and “group” are not capable of dispelling a confusing similarity between the disputed domain name and the Complainant’s marks since they are both descriptive; “fund” is a word often associated with the financial services industry in which the Complainant is active and the term “group” is likely to be associated with a multinational insurance company such as the Complainant.
The Complainant also asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name. While the Complainant bears the general burden of proof in proceedings under the Policy, it is well established that the Complainant is only required to make out a prima facie case under the second element before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name.
To the Complainant’s knowledge, the Respondent does not own any valid trade mark rights for “AgeasFund-Group”, nor is the Respondent commonly known by the disputed domain name. Moreover, the Complainant has not in any way consented to the registration and use of the disputed domain name and the absence of such consent constitutes prima facie proof that the Respondent lacks any rights or legitimate interests in it. It is highly unlikely the Respondent, ostensibly located in Ivory Coast, would have any legitimate interest in acquiring a domain name comprising the name of a well-known multinational insurance company based in Belgium. Nor does the Respondent have any connection or affiliation with the Complainant, nor has it received any license or consent, express or implied, to use the Complainant’s AGEAS trade mark, whether in the disputed domain name or otherwise.
In addition, the Respondent does not have any intention of using the disputed domain name in connection with a bona fide offering of services or of making a legitimate non-commercial or fair use of it. The disputed domain name is being used to host a website which misleadingly purports to be operated or endorsed by the Complainant. Internet users wishing to apply for a loan are obliged to provide information about their financial circumstances and the disputed domain name was evidently registered as part of a scam scheme aimed at obtaining personal information and money from Internet users by unlawful means. The reason that the Respondent has used a term identical to the Complainant’s trade mark, in relation to services which directly compete with those being offered under the Complainant’s trade mark, is to create the false impression that its website is being operated, or at least endorsed, by the Complainant. By doing so, the Respondent is taking unfair advantage of the reputation and the distinctive character of the Complainant’s AGEAS trade mark and services in order to lure Internet users to its website.
Using a disputed domain name for a phishing scheme is not a bona fide offering of goods or services. In Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com”, WIPO Case No. D2000-0847, the panel held that trading upon the name, goodwill, and reputation of another by misleadingly attracting Internet users for commercial gain cannot be considered to constitute a bona fide commercial or fair use within the meaning of paragraph 4(c)(i) of the Policy. In the present case the Respondent is misleading Internet users both through the website for which it is using the disputed domain name and through sending of fraudulent emails to customers seeking loans from the Respondent.
It must be noted that, according to section 2.13.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the use of a domain name for illegal activity can never confer rights or legitimate interests on a respondent. In summary, there is a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
Lastly, the Complainant says that the disputed domain name was registered and is being used in bad faith. The Respondent cannot reasonably claim that it was unaware of the existence of the Complainant, its trade marks and services at the time of registering the disputed domain name. The disputed domain name was registered on January 31, 2020 and the first of the Complainant’s AGEAS trade marks was registered over 10 years prior to this date. By the date of registration of the disputed domain name, the Complainant had developed into a multinational insurance company operating in 14 countries worldwide and the Respondent must have known of it.
The disputed domain name comprises the Complainant’s AGEAS trade mark, supplemented with two descriptive terms. AGEAS is a fanciful and invented word and its distinctive character in relation to insurance services has been enhanced significantly throughout the years as a result of extensive use of the mark and the territorial expansion of the Complainant’s activities. With this in mind, it is impossible that the Respondent would have come up independently with the disputed domain name which includes this mark in full, not least when the disputed domain name combines the Complainant’s trade mark with the descriptive terms “fund” and “group” both words being associated with the Complainant’s activities.
In addition, the current use of the disputed domain name establishes that the Respondent had knowledge of the Complainant and its activities when it registered the disputed domain name. The disputed domain name has been used for a website claiming to offer loans as part of a phishing scheme in which sensitive information and money is being obtained from Internet users in an illegitimate way. The offering of loans is a service closely intertwined with the insurance services being offered by the Complainant and, moreover, is included in class 36 of the Complainant’s AGEAS trademarks since this class covers among others “financial matters; monetary affairs”.
Furthermore, the Respondent’s website provided contact information for the Respondent which indicated that it was located at an address in Belgium. However, according to the WhoIs report, the Respondent is located in Ivory Coast. In fact, having investigated the information about the Respondent’s address details provided to the Center by the Registrar, these indicate that the Respondent’s address is a street called Pahou in a city called Pahou. However, Pahou is a city in Benin and not in Ivory Coast. It is accordingly clear that the Respondent has used false contact information when registering the disputed domain name and this is further evidence of use and registration of the disputed domain name in bad faith.
Paragraph 4(b)(iv) of the Policy provides that bad faith registration and use will be found where a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product on the respondent’s website or location.
Using a domain name for setting up a phishing scheme falls within the scope of the above provision. The disputed domain name is being used for a website at which loans are being offered under a sign which includes the Complainant’s AGEAS trademark. By offering financial services under such a sign on this website, the Respondent is creating a likelihood of confusion among Internet users as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of service on it.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Dealing, first, with the Respondent’s failure to file a response to the Complaint, paragraph 14(b) of the Rules provides that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under these Rules, the Panel shall be entitled to draw such inferences from this omission as it considers appropriate.
Paragraph 4(a) of the Policy provides that the Complainant proves each of the following three elements in order to succeed in its Complaint:
(i) the disputed domain name is identical or confusingly similar to a trade mark 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.
A. Identical or Confusingly Similar
The Complainant has provided details of the many registered trade marks it owns for AGEAS; these establish the Complainant’s rights in its marks.
As a technical requirement of registration, the gTLD (that is “.org” in this case) is typically disregarded when assessing confusing similarity. The remaining differences between the disputed domain name and the Complainant’s mark comprise the additional words “fund” and “group”, separated by a hyphen. The hyphen is of no significance when comparing the disputed domain name with the Complainant’s trade mark. The additional words “fund” and “group” do not prevent a finding that the disputed domain name is confusingly similar to the Complainant’s mark. As explained at 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 Complainant’s AGEAS trade mark is recognizable within the disputed domain name and the Panel accordingly finds that the disputed domain name is confusingly similar to a trade mark in which the Complainant has rights.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out circumstances, without limitation, by which a respondent might demonstrate that it has rights or legitimate interests in a domain name. These are, summarized briefly: if the respondent has been using the domain name in connection with a bona fide offering of goods or services, if the respondent has been commonly known by the domain name, or if the respondent has been making a legitimate noncommercial or fair use of the domain name.
How these provisions are usually applied in practice is explained at section 2.1 of the WIPO Overview 3.0. This explains that, as it can be difficult for a complainant to prove a negative, where it makes out a prima facie case under the second element, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant will be deemed to have satisfied the second element.
The Complainant has asserted that the Respondent is using the website to which the disputed domain name resolves as part of a relatively elaborate fraud, the details of which have been described above. The Panel agrees, for, at least, the following reasons. First, there is no plausible explanation for the Respondent’s use of the name “AGEAS Fund Group” other than that the Respondent intended that Internet users would associate it with the Complainant and assume that the offering of loans was a venture undertaken by the Complainant or with its authority. Second, the near-identical websites found by the Complainant purporting to offer the same services suggest strongly that the registration and use of the disputed domain name is part of a broader pattern of dishonesty by the Respondent and/or parties associated with it, using different variants of the same website in different countries. Third, the Respondent appears to have provided false address details and this conduct is inconsistent with honest intent on its part. Fourth, it is inherently improbable that a party purportedly resident in Ivory Coast, or in Benin, would be conducting a substantial financial services business with its headquarters in Belgium. Fifth, whether a panel should draw adverse inferences from the omission of a respondent to serve a reply is fact-specific. In these proceedings, the Complainant has provided a detailed case, supported by documentary evidence, as to why the Respondent’s website is likely to have been established for dishonest purposes. The failure of the Respondent to provide any form of answer to such allegations suggests that the Respondent is unable to challenge the Complainant’s case and it is appropriate to take the Respondent’s omission to reply into account when evaluating the Complainant’s assertions.
In the light of the submissions made in the Complaint coupled with the supporting documentary evidence provided by the Complainant, the Panel is satisfied that the use to which the Respondent is putting the disputed domain name is dishonest and cannot constitute a bona fide offering of goods or services. In this respect, see also section 2.13.1 of the WIPO Overview 3.0 which explains that “Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent”.
The second and third circumstances under paragraph 4(c) of the Policy are inapplicable; there is no evidence that the Respondent is commonly known by the disputed domain name and the use to which the disputed domain name has been put is commercial in character and cannot constitute fair use. As explained at section 2.5.1 of the WIPO Overview 3.0; “Generally speaking, UDRP panels have found that domain names identical to a complainant’s trademark carry a high risk of implied affiliation. Even where a domain name consists of a trademark plus an additional term (at the second- or top-level), UDRP panels have largely held that such composition cannot constitute fair use if it effectively impersonates or suggests sponsorship or endorsement by the trademark owner”.
The Complainant has made a strong prima facie case under the second element and, in the absence of any reply by the Respondent, the Panel finds that it has no rights or legitimate interests with respect to the disputed domain name.
C. Registered and Used in Bad Faith
The Panel accepts the Complainant’s assertion that the Respondent was aware of the Complainant and its AGEAS mark as it has used and promoted its AGEAS trade as at the date of registration of the disputed domain name. First, the Complainant’s mark is inherently distinctive and its incorporation within the disputed domain name is unlikely to be coincidental. Second, the nature of the additional words within the disputed domain name, namely “fund” and “group”, link it even more closely to the Complainant for the reasons the Complainant has explained. Third, the only known use of the disputed domain name following registration has been to resolve to a website promoting “AGEAS Fund Group” which purported to offer loans to members of the public. Whilst the Complainant’s primary activity is the provision of insurance, whereas the Respondent’s website promoted the availability of loans, the activities are sufficiently proximate in nature to lead many Internet users to infer that the Respondent’s website was operated by, or with the authorization of, the Complainant. Accordingly, as at the date of registration of the disputed domain name, the evidence suggests that the Respondent both knew of the Complainant and its services and intended to establish a website which would mislead Internet users into thinking that there was a close connection between it and the Complainant.
Paragraph 4(b) of the Policy sets out, without limitation, circumstances which, if found by a panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The circumstance at paragraph 4(b)(iv), in summary, is that, by using the domain name, a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website.
The use to which the Respondent has put the disputed domain name falls within these circumstances in that it has pointed to a website which, due to the distinctive character and relative repute of the Complainant’s AGEAS mark, purported to be operated by, or with the authorization of, the Complainant and to offer services which Internet users will associate with the Complainant. The belief of Internet users that the Respondent’s website was operated by, or on behalf of, the Complainant will have been reinforced because of the close similarity between the disputed domain name and the Complainant’s AGEAS trade mark. Moreover, there is no conceivable good faith use which the Respondent could make of the disputed domain name and the Respondent has not made any attempt to justify its conduct or to rebut the Complainant’s assertions. This points clearly to bad faith registration and use; see, by way of example, the decision of the panel in Swarovski Aktiengesellschaft v. WhoisGuard Protected / Peter D. Person, WIPO Case No. D2014-1447. The Panel notes also that many of the additional factors pointing to bad faith registration and use, which are set out at section 3.2.1 of the WIPO Overview 3.0, are present in this case.
For these reasons, the Panel finds that the disputed domain name was both registered and is being used in bad faith within the meaning of paragraph 4(b)(iv) 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 <ageasfund-group.org> be transferred to the Complainant.
Date: June 30, 2020
1 The Respondent describes itself on its website as both “AGEAS Fund Group” and “AGEAS Funds Groups”. This slight variation is not material and, for consistency, the Panel refers in the remainder of this Decision only to the first of these terms.