Complainant is Allianz SE, of Munich, Germany, internally represented.
Respondent is Safaricom Domains of Nairobi, Kenya. 2. The Domain Name and Registrar
The disputed domain name is registered with Moniker Online Services, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 14, 2015. On April 14, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 8, 2015, the Registrar transmitted by email to the Center its verification response confirming that 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” 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 Respondent of the Complaint, and the proceedings commenced on May 13, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 2, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 3, 2015.
The Center appointed Jeffrey D. Steinhardt as sole panelist in this matter on June 8, 2015. 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
Complainant is owner of many registrations worldwide for its ALLIANZ marks, including for example Community Trademark Registration No. 000013656 in classes 16, 35 and 36, registered July 22, 2002. Complainant’s mark is widely used in connection with insurance and financial services. Complainant is also owner of logo registrations that include the ALLIANZ mark with the African Intellectual Property Organization (OAPI), of which Kenya, Respondent’s country of residence, is a member state. OAPI Trademark Registration No. 43543 of May 10, 2001.
The disputed domain name was registered on March 20, 2015, and currently routes to an inactive webpage, indicating “Account Suspended.” Annexes to the Complaint show that Respondent’s webpages previously displayed offers for financial services as though Respondent were affiliated with Complainant. Based on the annexes, the website previously had an appearance similar to Complainant’s legitimate websites. 5. Parties’ Contentions A. Complainant
Complainant avers that it does business under the ALLIANZ marks in thirty African countries, among other places. The Complaint avers that Respondent is using the disputed domain name as part of a scheme to defraud consumers, by dishonestly purporting to be affiliated with Complainant’s company. In support of these allegations, the Complaint includes social media posts from individuals who allegedly tried to do business with Respondent in the belief that they were doing business with an affiliate of Complainant.
Summarizing its legal contentions, Complainant alleges that (1) the disputed domain name is confusingly similar to Complainant’s trademark, (2) Respondent has no rights or legitimate interests in the disputed domain name, and (3) the disputed domain name was registered and is being used in bad faith, all in violation of the Policy. On the above grounds, Complainant requests transfer of the disputed domain name. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Notification of Proceedings
The Policy and the Rules establish procedures to give respondents notice of proceedings and a reasonable opportunity to respond (see, e.g., paragraph 2(a) of the Rules). The Center sent by courier and email to Respondent notification of these proceedings, using the contact information provided by the Registrar. The courier notification was not deliverable at the address provided. The email notifications returned delivery error messages.
The Panel is satisfied that by sending communications to the contacts verified by the Registrar, based on those provided by Respondent and listed in the WhoIs records, the Center has exercised care, fulfilling its responsibility under paragraph 2(a) of the Rules to employ all reasonably available means to serve actual notice of the Complaint upon Respondent. B. Substantive Rules of Decision
The Panel must render its Decision on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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.
Complainant must establish these elements even if Respondent does not submit a Response. E.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. In the absence of a Response, the Panel may also accept as true the reasonable factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009). C. Identical or Confusingly Similar
The Panel agrees with Complainant that the disputed domain name is confusingly similar to Complainant’s trademark.
UDRP panels commonly disregard the generic Top-Level Domain (“gTLD”) suffix in evaluating identity or confusing similarity. E.g., VAT Holding AG v. V,WIPO Case No. D2000-0607.
The disputed domain name includes Complainant’s ALLIANZ mark in its entirety, adding only the generic terms “bank” and “group.” Omitting the gTLD suffix, the Panel finds that the addition of those two generic terms is not sufficient to distinguish the disputed domain name from the ALLIANZ mark. In fact, the Panel finds that Respondent’s addition of the terms “bank” and “group” is likely to increase the confusion that Internet users would experience, since the terms are suggestive of the field of products in which Complainant uses its mark.
The Panel concludes that the first element of Policy paragraph 4(a) is fulfilled. D. Rights or Legitimate Interests
The Panel also concludes that Respondent has no rights or legitimate interests in the disputed domain name.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in a domain name. The list includes: (1) using the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paragraphs 4(c)(i)-(iii).
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests in a domain name, after which the burden of rebuttal passes to the respondent. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone,WIPO Case No. DTV2002-0005).
The Panel accepts the Complaint’s undisputed allegations that Respondent has no authorization to use Complainant’s trademarks and that Respondent is not making bona fide use of the disputed domain name under the Policy. The Panel also finds that Respondent is not commonly known by the disputed domain name.1
The Complaint also alleges that Respondent is using the disputed domain name to defraud third parties. Based on the submissions, the Panel agrees. The Panel therefore finds that Respondent’s use of the disputed domain name demonstrates Respondent’s lack of a legitimate non-commercial interest in, or fair use of, the disputed domain name, without intent for commercial gain to misleadingly divert consumers.
The Complaint makes out a prima facie case. Filing no response, Respondent has not rebutted Complainant’s prima facie case or invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of rights or legitimate interests in use of the disputed domain name.
Accordingly, the Panel concludes that paragraph 4(a)(ii) of the Policy is satisfied. E. Registered and Used in Bad Faith
The Panel finds that the third element of paragraph 4(a) of the Policy, bad faith registration and bad faith use, is also established.
Using a domain name to intentionally attract Internet users, for commercial gain, by creating a likelihood of confusion, may be evidence of bad faith. Policy, paragraph 4(b)(iv). See, e.g., L’Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc,WIPO Case No. D2005-0623. UDRP panels may draw inferences about bad faith in light of the circumstances. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
The record shows that Respondent registered the disputed domain name long after Complainant perfected trademark rights in many countries. The name and prior content of the website makes obvious that Respondent was aware of Complainant’s trademark and sought to exploit it for profit. Respondent deliberately attempted to attract Internet users to its website for commercial gain, by creating a likelihood of confusion with Complainant’s marks. This is evidence of bad faith registration and bad faith use.
The Panel further finds that Respondent’s failure to reply to the Complaint and to maintain accurate contact details as required by the agreement with the Registrar are cumulative evidence of use in bad faith.
Consequently, the Panel concludes that the requirements of the third element of Policy paragraph 4(a) are fulfilled. 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 Complainant.
Jeffrey D. Steinhardt
Sole Panelist
Date: June 15, 2015
1 The Complaint omits any specific allegations that Respondent is not commonly known by the disputed domain name. Instead, the Complaint alleges only that Complainant’s “prior rights” would preclude Respondent from being commonly known by the disputed domain name. While trademark rights are relevant, this is not a trademark proceeding; under the UDRP, Complainant bears the burden to make a prima facie showing that Respondent is not “commonly known” by the disputed domain name.
The Panel’s conclusion that Respondent is not commonly known by the disputed domain name therefore has no foundation in the Complaint’s allegations respecting the theoretical reach of any trademark rights. The Panel’s conclusion is instead based on the record in this proceeding, which includes, among other things, Whois information provided by Complainant, listing Respondent’s organization name as “Safaricom Limited.”
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