Westmore · UDRP DecisionAllianzefx.com
The Panel ordered transfer of <allianzefx.com> after finding it confusingly similar to the ALLIANZ mark, that the Respondent lacked rights or legitimate interests, and that the Domain Name was registered and used in bad faith. On the balance of probabilities, the Panel concluded that the Respondent intended to offer foreign exchange services while passing itself off as associated with the Complainant.
The timeline behind allianzefx.com
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The case illustrates that a panel may find bad faith despite an inactive domain at the time of decision where the domain combines a long-established financial-services mark with a finance-related suffix and the available communications support an inference of impersonation for commercial gain. The Panel expressly acknowledged the limited direct evidence and framed its conclusion on the balance of probabilities.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Allianz SE v. Henry Henry, Hana Spa and Wellness Sdn Bhd (1231734-M) Case No. D2019-1090 1. The Parties The Complainant is Allianz SE, Germany, internally represented. The Respondent is Henry Henry, Hana Spa and Wellness Sdn Bhd (1231734-M), Malaysia. 2. The Domain Name and Registrar The disputed domain name <allianzefx.com> (the “Domain Name”) is registered with Web Commerce Communications Limited dba WebNic.cc (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 10, 2019. On May 10, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 12, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the 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 13, 2019 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 21, 2019. 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 21, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 10, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 15, 2019. The Center appointed Nicholas Smith as the sole panelist in this matter on June 25, 2019. 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 company with a history dating back to 1890 that today operates an international insurance and financial services business under the word mark “allianz” (the “ALLIANZ Mark”). The Complainant has traded under the ALLIANZ mark for more than 100 years and today has 142,000 employees serving 92 million customers in in over 70 countries. The Complainant is the owner of numerous trademark registrations for the ALLIANZ Mark in various jurisdictions including a registration through the Madrid system (International registration number 447004) dating from September 12, 1979 denoting various jurisdictions including France, Italy and Sweden. The Domain Name <allianzefx.com> was registered on September 27, 2016. The Domain Name is presently inactive however prior to the commencement of the proceeding the Complainant received an e-mail from a third party reporting that they were “introduced” to a forex trading fund purportedly trading from a website at the Domain Name and asserting that they were connected to the Complainant. There is no evidence before the Panel of any such fund or any such operational website. 5. Parties’ Contentions A. Complainant The Complainant makes the following contentions: (i) that the Domain Name is identical or confusingly similar to the Complainant’s ALLIANZ Mark; (ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. The Complainant is the owner of the ALLIANZ Mark, having registered the ALLIANZ Mark in various jurisdictions around the world. The Domain Name is confusingly similar to the ALLIANZ Mark as the Domain Name wholly incorporates the ALLIANZ Mark. There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Respondent is not commonly known by the Domain Name nor does the Respondent have any authorization from the Complainant to register the Domain Name. The Respondent is not making a legitimate noncommercial or fair use of the Domain Name. Rather the Respondent is using the Domain Name to purport to sell financial services by suggesting that the Respondent is connected in some way with the Complainant. The Domain Name was registered and is being used in bad faith. By using the Domain Name to for a business that passes itself off as connected to the Complainant, the Respondent is using the Domain Name to divert Internet users searching for the Complainant for commercial gain. Such conduct amounts to registration and use of the Domain Name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar To prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark. The Complainant is the owner of the ALLIANZ Mark, having registrations for ALLIANZ as a trademark in various countries in Europe as well as other jurisdictions. The Domain Name incorporates the ALLIANZ Mark with the addition of the letters “efx”, which may refer to foreign exchange trading services, a financial services product similar to products offered by the Complainant. The addition of such descriptive words to a complainant’s mark does not prevent a finding of confusing similarity, see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) and Wal-Mart Stores, Inc. v. Henry Chan , WIPO Case No. D2004-0056 . The Panel finds that the Domain Name is confusingly similar to the Complainant’s ALLIANZ Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name. Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name: “Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii): (i) before any notice to you 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 (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 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.” The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the ALLIANZ Mark or a mark similar to the ALLIANZ Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a legitimate noncommercial or fair use. There is no evidence of any use of the Domain Name for an active website or business however, the Complaint does contain an e-mail suggesting that the Respondent is using the Domain Name for a foreign exchange business and explicitly seeking to pass itself off as connected with the Complainant. If this was the case, then the Respondent’s use of the Domain Name does not grant it rights or legitimate interests since it is using or has used the Complainant’s ALLIANZ Mark to pass itself off as the Complainant to sell competing products. The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had the opportunity to put on evidence of its rights or legitimate interests, including submissions as to why its conduct amounts to a right or legitimate interest in the Domain Name under the Policy. In the absence of such a Response, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith For the purposes of paragraph 4(a)(iii), 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: (i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or (ii) the respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the 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 the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location (Policy, paragraph 4(b)). The Panel finds that the Respondent was aware of the Complainant and its reputation in the ALLIANZ Mark at the time the Domain Name was registered. It appears that in communications with third parties the Respondent has explicitly stated that it is associated with the Complainant. The registration of the Domain Name in awareness of the ALLIANZ Mark and in the absence of rights or legitimate interests amounts under these circumstances to registration in bad faith. On the balance of probabilities, it appears that the Respondent registered the Domain Name for the purposes of operating a business specifically to sell foreign exchange services that are passed off as being services of the Complainant or from an entity connected to the Complainant. Consequently, the Panel finds that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or location by creating a likelihood of confusion with the Complainant and the Complainant’s ALLIANZ Mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location. Accordingly, the Panel finds that the Respondent has registered and used the Domain Name in bad faith under paragraph 4(a)(iii) of the Policy. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <allianzefx.com> be transferred to the Complainant. Nicholas Smith Sole Panelist Date: July 4, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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