Allianz SE v. Roy Lee / Traffic-Domain.com
Case No. D2012-1459
1. The Parties
The Complainant is Allianz SE of Munich, Germany, represented internally.
The Respondent is Roy Lee / Traffic-Domain.com of Tangshan, Hebei, China.
2. The Domain Names and Registrar
The disputed domain names , , , , are registered with Dynadot, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 18, 2012. On July 18, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On July 19, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 31, 2012, 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 amendment to the Complaint on July 31, 2012.
The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 8, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was August 28, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 29, 2012.
The Center appointed Peter Burgstaller as the sole panelist in this matter on September 3, 2012. 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 the parent company of one of the oldest and largest international insurance and financial services groups worldwide. The Complainant has been the owner of several international, European and nationally registered trademarks containing the word “Allianz” since 1979 (Annex E to the Complaint). The Complainant has also registered the trademark Allianz as several Top Levels as Domain Name (Annex F to the Complaint).
5. Parties’ Contentions
The Complainant is the parent company of one of the oldest and largest insurance and financial services groups in the world. The Complainant serves to approximately 78 million customers in more than 70 countries. The distinguished trademark Allianz was ranked by the international marketing agency Interbrand as No. 67 worldwide. The trademark Allianz is registered in several countries as well as a community trademark and is well-known all over the world.
The disputed domain names include not only the famous trademark Allianz but also a reference a core business of the Complainant , namely “travel insurance” with typos. The disputed domain names are confusingly similar to the trademarks over which the Complainant has rights.
The Respondent has no rights or legitimate interests in respect of the disputed domain names.
The Respondent has registered and is using the disputed domain names in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests with respect to the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
The disputed domain names incorporate the entirety of the Complainant’s main trademark Allianz together with a generic (misspelled) suffix.
The use of a trademark with a generic suffix (such as e.g. “travelinsurance”) does not make a domain name distinctive from the trademark. In fact, it is the Panel’s conviction that in using a suffix which contains products and services that are covered by the Complainant’s trademark rather strengthens the impression that the disputed domain names are in some way connected to the Complainant or may be considered to be “free riders” on the fame/publicity of a complainant’s trademarks (see e.g. Quixtar Investments, Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253; Telstra Corporation Limited v. Peter Lombardo, Marino Sussich and Ray Landers, WIPO Case No. D2000 1511; Dixons Group Plc v. Mr. Abu Abdullaah, WIPO Case No. D2000 1406; Ryder Cup Europe LLP v. Rydercuponline.com / Andrew Seaforth, WIPO Case No. D2010 0688; Sanofi-aventis, AVENTISUB II Inc. v. Murugan Nadar / Rajesh Singh, WIPO Case No. D2010 1959; Société des Produits Nestlé S.A. v. MrToys.com LLC, WIPO Case No. D2012 1356).
The fact that the disputed domain names consist of misspelled generic suffixes does not change anything in this regard.
It has also long been found that suffixes such as the gTLD “.com” cannot typically negate confusing similarity where it otherwise exists, as the Panel has found it does in the present case.
The Panel therefore finds that the Complainant has made out the first of the three elements under paragraph 4(a) of the Policy that it must establish.
B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the disputed domain names.
However, by virtue of paragraph 4(c) of the Policy, it is open to a respondent to establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following circumstances:
(i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial 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.
If the Respondent proves any of these circumstances, or anything else that shows it has a right or legitimate interest in the disputed domain names, the Complainant will have failed to discharge its onus and the complaint will fail with respect to the disputed domain names. However, in the present case the Respondent failed to submit a Response.
It is well established that, as it is put in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") at paragraph 2.1 that:
“[C]omplainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP.”
It is moreover the Panel’s conviction that registering domain names including misspelled trademarks or suffixes or prefixes is a strong indication to assume lack of rights or legitimate interests if there is no evidence to the contrary.
All of the evidence in the Complaint, and the fact of misspelling generic suffixes, leads the Panel to the conclusion that the Complainant has made out an undisputed prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names.
C. Registered and Used in Bad Faith
For the purpose of paragraph 4(a)(iii) of the Policy, if 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 the dispute domain names in bad faith:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from using the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s website or location or of a product or service on the holder’s web site or location.
As stated in many decisions under the Policy (e.g. Robert Ellenbogen v. Mike Pearson, WIPO Case No. D2000 0001) both conditions, registered and used in bad faith, are cumulative, consequently, the Complainant must show that:
- the disputed domain names were registered by the Respondent in bad faith and,
- the disputed domain names are being used by the Respondent in bad faith.
Registered in bad faith
The disputed domain names are composed by the Complainant’s distinctive trademark Allianz and the suffix “travelinsurance” whereupon this suffix was registered by the Respondent in a misspelled way namely, “traveinsurance”, “travelinsuance”, “travelinsurace” travelinsuranc” and “travelisurance”.
It is the Panel’s opinion that the choice of these suffixes has the only purpose to attract Internet traffic while using the publicity and the reputation of the Complainant’s trademark.
Previous UDRP panels have found that in certain circumstances when a trademark is well known, the respondent’s bad faith may be inferred (AT&T Corp. v. LaPorte Holdings, Inc., WIPO Case No. D2004 1088, “Bad faith can be presumed based on the fame of Complainant’s marks, such that the Respondent was aware or should have been aware of Complainant’s well-known marks and claims of rights thereto”).
In the present case the Respondent has not only registered domain names containing the Complainant’s trademark but also include one of the Complainant’s core businesses namely, travel insurance services (“travelinsurance”). It is therefore clear for this Panel that the Respondent was aware of the Complainant’s mark at the time of registration of the disputed domain names.
These findings together with the Complainant’s contentions and presented proofs lead this Panel to the conclusion that the disputed domain names have been registered in bad faith by the Respondent.
Used in bad faith
In order to meet paragraph 4(a)(iii) of the Policy the Complainant has also to prove that the disputed domains name are being used in bad faith.
In the present case the Respondent addresses its website with the disputed domain names and offers on its Website hyperlinks to providers of services identical or similar to the services rendered by the Complainant (Annex N to the Complaint). By offering such hyperlinks the Panel finds that the Respondent uses the disputed domain names in bad faith.
Given the fact that the Complainant offers its services inter alia at the website “www.allianztravelinsurance.com” it is without any doubt for this Panel that the Respondent not only “free rides” on the fame/publicity and high reputation of the Complainant’s trademark Allianz but also exploits typos made by Internet users by using the disputed domain names.
The disputed domain names are therefore being used in bad faith by the Respondent and the Panel finds that the conditions set out in paragraph 4(a)(iii) of the Policy have been met by the Complainant.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names , , , and be transferred to the Complainant.
Dated: September 15, 2012