WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Allianz SE v. Weingarth, Steve, Organisation of Allianzen
Case No. D2007-0625
1. The Parties
The Complainant is Allianz SE, Munich, Germany, represented by Lorenz Seidler Gossel, Germany.
The Respondent is Weingarth, Steve, Organisation of Allianzen, Miami, Florida, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with Wild West Domains, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 24, 2007. On April 25, 2007, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the domain name at issue. On May 11, 2007, Wild West Domains, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 May 14, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was June 3, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 12, 2007. Prior to the notification of Complaint, the Respondent sent an email to the Center on May 4, 2007, containing some arguments as to why the domain name at issue should not be transferred. Although not a formal Response, this email will be taken into consideration by the Panel in its decision in accordance with the Rules, paragraph 10.
The Center appointed Tobias Zuberb�hler as the sole panelist in this matter on June 25, 2007. 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 one of the world's leading insurers and financial service providers. According to the Complainant's information, the Allianz Group is present in more than 70 countries with over 162,000 employees and provides its services to more than 60 million customers worldwide. By the end of 2004, the Allianz Group had more than one trillion Euros in assets under management.
The Complainant is the owner of a range of German and international ALLIANZ trademarks for insurance and financial services (Annex 5-20 of the Complaint). Several German courts have held that ALLIANZ is a well-known trademark with a high reputation (as evidenced by the decisions in Annex 24 to the Complaint).
The domain name at issue was registered on March 27, 2007. The Complainant initiated court proceedings against the Respondent before the Regional Court (Landgericht) of Munich, Germany, on April 13, 2007. The resulting court decision of April 18, 2007, prohibited the Respondent under penalty of EUR 5 to EUR 250,000 from using the domain name at issue and from disseminating certain defamatory statements on the respective website (Annex 26 and 27 to the Complaint). With regard to these legal proceedings, in accordance with the discretion granted to a panel under the Rules, paragraph 18, this Panel elects to proceed to a decision in respect of the domain name dispute.
5. Parties' Contentions
A. Complainant
Confusing similarity
The Respondent makes use of the Complainant's well-known trademark ALLIANZ and only added the suffix “en”. The great similarity of the addresses in an acoustic and visual respect is further increased by the conceptual content of the domain name at issue and by the content of the website found under the domain name. Against this background, considering in addition UDRP panels' views on joining “strong” trademarks with generic prefixes or suffixes, the mere addition of the final “en” syllable to the corporate name of “Allianz” is not sufficient to preclude a finding of confusing similarity.
Respondent's rights and legitimate interests
It is apparent that the Respondent, who has not been commonly known by the domain name at issue, has no other rights or legitimate interests in the domain name. As can be seen from the judgment of the Regional Court of Munich of April 18, 2007, the Respondent used the website under the domain name to defame the Complainant. Reference is also made to Cardservice International, Inc v. McGee, 950 F. Supp. 737 (E.D.Va. January 16, 1997), where the Court stated: “Such malicious actions and statements are not made in the reasonable continuation of litigation and indicate an intention by McGee to use Cardservice International's registered mark to harm the company's reputation and ability to do business on the Internet. The Court finds that Cardservice International has fulfilled its burden of demonstrating bad faith on the part of Mc Gee […].”
Bad faith registration and use
The Respondent intentionally attempted to attract Internet users to its website, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website. This is evident as the Respondent not only knew the Complainant's company name and trademarks, which alone would be sufficient to prove its bad faith, but also referred to the Complainant in the content of his website.
B. Respondent
In his email to the Center of May 4, 2007, the Respondent pointed out that there was no similarity between the domain name at issue and the Complainant's trademark because the German word “Allianz” and particularly its plural “Allianzen” was a “public word” and could not be protected as a trademark, adding that the Complainant “has only Trademarks and no rights for Domain Protection”.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following in order to succeed in an administrative proceeding:
(i) that the Respondent's domain names are identical or confusingly similar to a trademark or service mark in which the Complainants have rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the domain names; and
(iii) that the domain names have been registered and are being used in bad faith.
Paragraph 4(c) of the Policy sets out circumstances which, in particular but without limitation, if found by the Panel to be proved, shall demonstrate the Respondent's rights or legitimate interests in the domain names at issue.
Paragraph 4(b) of the Policy sets out circumstances which, again 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.
A. Identical or Confusingly Similar
The domain name at issue incorporates the Complainant's trademark ALLIANZ, with the added with the suffix “en”. Both parties point out that the term “Allianzen” is a German plural for the generic term “Allianz” (English: alliance).
The Complainant, however, has achieved trademark protection for ALLIANZ and has been using this widely-known trademark since 1890, the Panel rejects the Respondent's contention that the trademark ALLIANZ is in the public domain, at least not for insurance and financial services.
The question remains whether the suffix “en” is sufficient to distinguish the domain name at issue from the Complainant's trademark. In the Panel's view, considering that the Complainant's trademark is widely-known, this is not the case (cf.
, Deutsche Telekom AG v. Vision Computer S.L., WIPO Case No. D2001-1240).
The Complainant has thus fulfilled the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Pursuant to a preliminary injunction of the Regional Court of Munich of April 18, 2007, certain statements previously contained on the Respondent's website constituted undue name appropriation and defamation that was not covered by freedom of speech or legitimate interests. Whether or not motivated by a desire to comply with the Regional Court of Munich, the Respondent apparently has complied with the Court's injunction and has “parked” its domain name freely on a general web portal.
This Panel does not find any basis in the record to consider either registration or use of this domain name by the Respondent to be based on a right or legitimate interest. Accordingly, the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
It appears from the factual background of this case and the German court judgment of April 18, 2007, that the Respondent registered and used the domain name at issue to disseminate defamatory statements against the Complainant and some of its representatives. Such conduct constitutes bad faith registration and use, thus fulfilling paragraph 4(a)(iii) of the Policy. The Respondent's bad faith cannot be healed by the fact that the domain name is currently inactive (i.e. that the Complainant has removed the defamatory statements) as the Respondent, in all likelihood, registered the domain name with knowledge of the Complainant's trademark and has failed to show any rights or legitimate interests in the domain name.
The Complainant has thus fulfilled the requirements of paragraph 4(a)(iii) of the Policy.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Tobias Zuberb�hler
Sole Panelist
Dated: July 9, 2007
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