The Complainant is AXA SA of Paris, France, represented by Selarl de CANDÉ - BLANCHARD, France.
The Respondent is Maria Mikhailova of Aksai, Rostovskaya oblast, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with NICCO Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 17, 2013. On July 18, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name, followed by a reminder on July 23, 2013. On July 24, 2013, 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 July 24, 2013 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 August 7, 2013. On July 24, 2013, the Center also transmitted the language of the proceedings document to the parties in both English and Russian. On August 7, 2013, the Complainant requested the language of the proceedings to be English. On the same date, the Center invited the Respondent to comment on this request of the Complainant by August 10, 2013. Despite having been invited to do so by the Center, the Respondent did not submit any comment in relation to the language of the proceedings.
The Center verified that the Complaint together with the amendment to the Complaint and the request for English as the language of the Proceedings 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 23, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was September 12, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 17, 2013.
The Center appointed Assen Alexiev as the sole panelist in this matter on October 8, 2013. 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.
On September 19, 2013, in conjunction with paragraph 3.7.5.7 of the ICANN Expired Domain Deletion Policy, the Center sent a message to the Registrar with a copy to the Parties noting that the disputed domain name is set to expire on October 22, 2013. The Center requested the Registrar to inform the Center and Parties if any action was required. The Registrar sent its reply on September 20, 2013 stating the following: “The domain will be kept under Registrar LOCK, and auto-renewed by the Registry. Either the Complainant or the Respondent will be able to renew it within 35 days Auto-Renew Grace period, or, if later, to recover it from Redemption Grace period.” 4. Factual Background
The Complainant is the holding company of the АХА Group. The АХА Group is a world leader in three major lines of business: property and casualty insurance, life insurance and savings, and asset management. The AXA Group is present in 57 countries in Europe, North America and Asia-Pacific. It has 216,000 employees worldwide and serves 96 million customers.
The АХА Group has a long history which started in the 18th century. It adopted the trade name АХА in 1985. АХА has been traded on the Paris Stock Exchange since 1988, and in 1996 it was listed on the New York Stock Exchange.
The Complainant is the owner of the following trademarks:
- the International trademark АХА with No. 490030, registered on December 5, 1984 for the territories of 24 countries for services in International Classes 35, 36 and 39;
- the Community trademark АХА with No.000373894, registered on July 29, 1998 for services in International Classes 35 and 36;
- the United States (“US”) trademark АХА with No.1679597, registered on March 17, 1992 for services in International Classes 35 and 36;
- the French trademark АХА with No.1282650 registered on August 7, 1984 for goods and services in International Classes 12, 14, 16, 18, 25, 28, 34, 35, 36 and 41;
- the Community trademark АХА INVESTMENT MANAGERS with No.000721928, registered on April 8, 1999 for goods and services in International Classes 16, 35, 36, 38, 41, 42; and
- the US trademark АХА INVESTMENT MANAGERS with No.2337424, registered on April 4, 2000 in classes 35, 36, 38, 41 and 42.
The domain names and are registered by affiliates of the Complainant.
The disputed domains name was registered on October 22, 2002. 5. Parties’ Contentions A. Complainant
The Complainant submits that the disputed domain name is confusingly similar to the trademarks and domain names in which the Complainant has rights. The disputed domain name reproduces entirely the trademark АХА which as itself has no particular meaning and is therefore highly distinctive. The initials “im” are commonly used in the financial management market to refer to “investment managers”. The addition of these initials to the disputed domain name therefore refers to the denomination “investment managers” and to the trademark АХА INVESTMENT MANAGERS and to the domain names and of the Complainant. The addition of the initials “im” to the trademark АХА is not sufficient to escape a finding of confusing similarity. Rather, the use of these initials leads consumers to believe that the disputed domain name offers services in the field of financial investment management.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent does not have any legitimate interest in using the disputed domain name since her name has no resemblance to it. The Respondent has no prior rights and/or legitimate interests to justify the use of the Complainant’s trademarks. The Complainant has never licensed or otherwise permitted the Respondent to use its trademarks or to register any domain name including the same trademarks. There is no relationship whatsoever between the involved parties.
According to the Complainant, the disputed domain name was registered in bad faith with the purpose of attracting Internet users to the Respondent’s website and making unfair benefit of its reputation, by reproducing the distinctive name “axa” with the addition of the descriptive initials “im”.
The Complainant submits that its АХА and АХА INVESTMENT MANAGERS trademarks are well-known worldwide, so the Respondent must have been aware of them when registering the disputed domain name. The disputed domain name reproducing the distinctive term “axa” attracts Internet users by creating a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of the website. On this basis the Complainant asserts that it is inconceivable that the Respondent registered with good faith the disputed domain name unaware of the Complainant’s rights. Rather, the Respondent must have had registered the disputed domain name in order to abusively benefit from the Complainant’s notoriety.
The Complainant also maintains that the disputed domain name is being used by the Respondent in bad faith. The disputed domain name leads to no website, so the Respondent’s behavior is a typical “passive use” of the disputed domain name which incorporates a well-known trademark. According to the Complainant, the incorporation of a well-known trademark into a domain name by a registrant who has no rights or legitimate interests and has no plausible explanation for doing so may be in and of itself an indication of bad faith. With these arguments, the Complainant asserts that the Respondent uses in bad faith the disputed domain name, primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant or to a competitor of the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(i) the disputed domain name is 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 in respect of the disputed domain name; and
(iii) the Respondent has registered and is using the disputed domain name in bad faith.
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with the Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present her case.
By the Rules, paragraph 5(b)(i), it is expected of a respondent to “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”
In the event of a default, under the Rules, paragraph (14)(b) “… the Panel shall draw such inferences therefrom as it considers appropriate.”
As stated by the Panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques,WIPO Case No. D2000-0004: “Here, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent.” As stated by the Panel in Viacom International Inc. v. Ir Suryani,WIPO Case No. D2001-1443: “Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant […]. In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.”
In this administrative proceeding, the Respondent’s default entitles the Panel to conclude that the Respondent has no arguments or evidence to rebut the assertions of the Complainant. The Panel has to take its decision on the basis of the statements and documents submitted by the Complainant and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. A. Language of the Proceedings
In respect of the language of the proceedings, the Panel notes the following. According to the information provided by the Registrar, the language of the registration agreement for the disputed domain name is Russian. Under paragraph 11 of the Rules, 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 Complainant has submitted its Complaint and all evidence attached to it in the English language, and has requested the proceeding to be held in English. The Center has sent all its messages to the Respondent in both English and Russian, and has invited the Respondent to express her views on the language of the proceeding. The Respondent has refrained from doing so, and has thus not objected the proceedings to be held in English.
In these circumstances, it appears to the Panel that using the English language in this proceeding will be fair and efficient and will not put either of the parties at a disadvantage. Therefore, in exercise of its powers under paragraph 11 of the Rules, the Panel decides that the language of this administrative proceeding be English. B. Identical or Confusingly Similar
The Complainant has provided evidence for the registration and its ownership over the AXA and the AXA INVESTMENT MANAGERS trademarks, registered in many jurisdictions. Thus, the Complainant has established its rights in these trademarks.
It is a common practice under the Policy to disregard in appropriate circumstances the generic top-level domains (“gTLD”) such as the “.com” for the purposes of the comparison under the Policy, paragraph 4(a)(i). Therefore, the relevant part of the disputed domain name is its “axaim” section. This section starts with the letters “axa”, which form a sequence, identical to the AXA trademark of the Complainant and to the AXA element of the AXA INVESTMENT MANAGERS trademark of the Complainant. In the Panel’s view, the “axa” sequence of the disputed domain name is its most prominent part due to its position in the beginning and its originality. The remaining part of the disputed domain name - the letters “im” - is not distinctive, and as contended by the Complainant may be regarded by Internet users as an abbreviation for “investment management”, which represents one of the core activities of the Complainant, as reflected in the AXA INVETMENT MANAGERS trademark of the Complainant and the domain names and , registered by affiliates of the Complainant.
Taking the above into account, the Panel considers that Internet users may regard the disputed domain name as related to the Complainant and its business. Therefore, the Panel finds that the disputed domain name is confusingly similar to the trademarks in which the Complainant has rights. C. Rights or Legitimate Interests
The Policy requires the Complainant to make at least a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name. Once the Complainant makes such a showing, the Respondent may provide evidence to demonstrate that it has rights or legitimate interests in the disputed domain name. The burden of proof, however, always remains on the Complainant to establish that the Respondent lacks rights or legitimate interests in the disputed domain name. See paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
The Complainant has contended that the Respondent has no rights or legitimate interests in the disputed domain name, stating that the Respondent has not been commonly known by the disputed domain name, does not have prior rights or legitimate interests in it, and that the Complainant has never licensed or otherwise permitted the Respondent to use its trademarks or to register any domain name including the above-mentioned trademarks. Thus, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent, although given a fair opportunity to do so, chose not to present to the Panel any arguments in her defense in accordance with the Rules, paragraph 5(b)(i) and 5(b)(ix), despite the consequences that the Panel may extract from the fact of a default (Rules, paragraph 14). If the Respondent had any legitimate reason for the acquisition and use of the disputed domain name, she could have brought it to the attention of the Panel. In particular, the Respondent has failed to contend that any of the circumstances described in Policy, paragraph 4(c), is present in her favor.
Apart from the factual contentions of the Complainant, the only other source of information about the Respondent is the WhoIs information, provided by the Registrar. The WhoIs information contains no evidence that the Respondent is commonly known by the disputed domain name, and as evident from the case file, the Respondent has provided an incorrect physical address – a circumstance that in the absence of a plausible explanation may be regarded as not supporting the existence of rights and legitimate interests of the Respondent in the disputed domain name.
The Panel therefore finds that the Complainant’s prima facie case has not been rebutted, and that the Respondent has no rights or legitimate interests in the disputed domain name. D. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii) 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:
(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 the complainant who is the owner of the trademark or service mark or to a competitor of that 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 reflecting 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 the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on the holder’s website or location.
As found above, the disputed domain name is confusingly similar to the AXA and AXA INVESTMENT MANAGERS trademarks of the Complainant, and the Complainant has submitted evidence for its worldwide activities for a long period of time under the trade name AXA. Taking this into account and in the absence of any rebuttal by the Respondent, on the balance the Panel is prepared to accept that the Respondent was aware of the Complainant and of its trademarks, and may have registered the disputed domain name taking into account their goodwill and value for the Complainant. As discussed above, the Respondent does not appear to have any rights or legitimate interests in the disputed domain name.
There is no active website at the disputed domain name. As contended by the Complainant, the “passive use” of a domain name, which incorporates a popular trademark, by a registrant who has not alleged and shown any rights or legitimate interests in it, and has not provided a plausible explanation for doing so, may be an indication of bad faith use.
In this situation, and in the absence of any objection or plausible explanation by the Respondent, the Panel is prepared to accept that the Respondent, by registering and using the disputed domain name has intentionally attempted to attract for commercial gain Internet users by creating a likelihood of confusion with the Complainant’s AXA and AXA INVESTMENT MANAGERS trademarks as to the source, sponsorship, affiliation, or endorsement of the same website or of the services offered on it. This supports a finding of bad faith registration and use of the disputed domain name under the Policy, paragraph 4(b)(iv).
Therefore, the Panel finds that the Respondent has registered and used the disputed domain name in bad faith. 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 disputed domain name be transferred to the Complainant.
Assen Alexiev
Sole Panelist
Date: October 28, 2013
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