The Complainant is AXA SA of Paris, France, represented by Selarl Candé - Blanchard - Ducamp, France.
The Respondent is Discover Domains of Gurgaon, India. 2. The Domain Name and Registrar
The disputed domain name ("Domain Name") is registered with PDR Ltd. d/b/a PublicDomainR (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 8, 2016. On January 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 11, 2016, 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 January 15, 2016 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 January 20, 2016.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 20, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 9, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 10, 2016.
The Center appointed William P. Knight as the sole panelist in this matter on February 16, 2016. 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 holding company, listed on both the Paris and New York Stock Exchanges, controlling a large group of companies trading worldwide in a range of financial services, including property and casualty insurance, life insurance and savings, and asset management, to individuals and to businesses. It adopted the trademark AXA in 1985, which has since become a well-known mark around the world, identifying the Complainant and its related companies. The Complainant has many registered trademarks for AXA or incorporating AXA in many countries, largely in respect of business, insurance, financial and communications services.
The Domain Name was registered to the Respondent on June 30, 2015. At the time of this decision, the Domain Name leads to a webpage that comprises solely of a number of links to other websites. There is no other substantive content on the website. 5. Parties' Contentions A. Complainant
In accordance with paragraph 4(a) of the Policy, the Complainant asserts:
(i) that the Domain Name is confusingly similar to its AXA trade mark;
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name;
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant contends that the Domain Name is confusingly similar to its AXA trademark as the Domain Name fully incorporates the registered trademark. The Complaint argues that this is so regardless of the addition of another word, in this case the prefix "dating", citing Oki Data Americas Inc v. ASD Inc.,WIPO Case No. D2001-0903. The Complainant says, furthermore, that the prefix "dating" is a generic term that is incapable of diminishing the confusing similarity between the Domain Name and the AXA trademark, citing The Royal Bank of Scotland Group plc v. James Milner,WIPO Case No. D2012-1724, Groupon, Inc. v. Admin Contact, PrivateName Services Inc. / Shorkmedia GbR,WIPO Case No. D2015-1715, which concerned the domain name and AXA SA v. Frank Van,WIPO Case No. D2014-0863, which concerned the domain name .
The Complainant states that the Respondent has not been commonly known by the Domain Name and does not seem to have acquired trademark or service mark rights, that it has not authorized the Respondent's registration and use of the Domain Name nor in any other way permitted the Respondent to use the AXA trademark or to register any domain name including the AXA trademark.
The Complainant provides a screenshot of the page to which the Domain Name leads which offers links to offers of financial services including the Complainant or its related companies. It argues that the Respondent is not making a fair use of the Domain Name because it is being used to derive "pay-per-click" ("PPC") revenue unfairly capitalizing upon or otherwise taking advantage of the trademarks belonging to the Complainant, citing Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright,WIPO Case No. D2007-0267.
The Complainant contends that the Domain Name must have been registered and is being used in bad faith, in the sense required of the Policy. It says that, because its trademark registrations and use of its name predated the registration of the Domain Name, the Respondent must have been aware of the Complainant's pre-existing reputation and intended to exploit it. The Complainant also says the Respondent's use of the Domain Name qualifies bad faith under paragraph 4(b)(iv) of the Policy in that the Respondent is attempting to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on the Respondent's website, citing Dr. Martens International Trading GmbH, Dr. Maertens Marketing GmbH v. Private Whois Service,WIPO Case No. D2011-1753. B. Respondent
The Respondent did not reply to the Complainants' contentions. 6. Discussion and Findings
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy, namely:
(i) that the Domain Name is confusingly similar to its AXA trade mark;
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name;
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant has not persuaded the Panel that the Respondent targeted the Complainant's trademark in the Respondent's registration and use of the Domain Name. The Complainant did provide evidence that its mark is well-known on a global basis. However, the Complainant's mark consists of a very short letter string that can be included in other words.
The examples given in the Policy of registration and use in bad faith are as follows:
a. Registrant has registered or 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 documented out-of pocket costs directly related to the domain name; or
b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant's web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of Registrant's
web site or location or of a product or service on that web site or location.
It is important to note regarding examples a, b and d is that the conduct of the Respondent must be weighed relative to the Complainant, and not to any other person. The third example relates to the intended disruption of a competitor of the Respondent, which is not invoked here.
The Complainant has put in evidence a copy of the web page to which the Domain Name is pointed, which is a page providing PPC links to offers of financial services, including the Complainant.
The Panel acknowledges that the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (WIPO Overview 2.0) paragraph 3.8 states that "a domain name registrant will normally be deemed responsible for content appearing on a website at its domain name, even if such registrant may not be exercising direct control over such content - for example, in the case of advertising links appearing on an "automatically" generated basis. To the extent that the presence of certain advertising or links under such arrangement may constitute evidence of bad faith use of the relevant domain name, such presence would usually be attributed to the registrant unless it can show some good faith attempt toward preventing inclusion of advertising or links which profit from trading on third-party trademarks."
However, prompted by the inherent probability of any Internet user starting with the word "dating" in a search for the Complainant as a provider of insurance financial services only, according to its own evidence, the Panel searched the Domain Name and observed that all the PPC links on the Respondent's web page referred to dating services.
The Complainant has not offered any evidence that the word "dating" has any meaning in any language that might indicate a connection of some kind, of even the remotest nature, with the Complainant. The Panel is of the view that the beginning of the Domain Name with this word showed a clear intention of the Respondent to target some entirely different activity.
The Panel is also mindful of the apparently successful dating websites under the domain names and which are more likely to have been the intended targets of the Respondent. The Respondent has no history of misuse of domain names so far as can be determined by the Panel and it is not beyond the bounds of possibility that it has some business connection with the operators of the Dutch and Belgian dating website.
In the circumstances, the Panel finds that the Complainant's evidence is simply too slender, and has not established the Respondent's bad faith in registering and using the Domain Name by a preponderance of the evidence. 7. Decision
For the foregoing reasons, the Complaint is denied.
William P. Knight
Sole Panelist
Date: March 7, 2016
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