The Complainant is Allianz SE of Munich, Germany, represented internally.
The Respondent is Privacy Gods, Privacy Gods Limited of London, United Kingdom of Great Britain and Northern Ireland ("UK"). 2. The Domain Name and Registrar
The disputed domain name is registered with R Corp. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 19, 2016. On January 19, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar 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" 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 29, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 18, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 19, 2016.
The Center appointed Mladen Vukmir as the sole panelist in this matter on February 29, 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 Panel has determined the following non-contested facts:
(i) the disputed domain name was created on June 5, 2015 (Annex A to the Complaint);
(ii) the Registrar confirmed that the Respondent is the registrant of the disputed domain name (the Registrar's email transmitted to the Center on January 19, 2016);
(iii) under the disputed domain name, the Respondent operates a website that contains hyperlinks to third party websites offering various insurance products and services, including international health insurance (these facts were determined by the Panel through Annex E to the Complaint and by inspecting the website under the disputed domain name).
(iv) the Complainant is the owner of a number of ALLIANZ trademark registrations and derivatives thereof, in different classes, including 16, 35, 36, 44 and 45, as listed and evidenced in the Complaint and Annexes C and D to the Complaint, particularly,
Trademark
Trademark Office
Reg. No.
Registration Date
ALLIANZ (word)
International Registration
447004
September 12, 1979
ALLIANZ (word)
International Registration
714618
May 4, 1999
ALLIANZ and Design
(word + figurative)
International Registration
713841
May 3, 1999
ALLIANZ (word)
Germany
987481
July 11, 1979
ALLIANZ (word + figurative)
Germany
39927827
July 16, 1999
ALLIANZ (word)
Office for Harmonization in the Internal Market (OHIM)
000013656
July 22, 2002
ALLIANZ and Design(figurative)
OHIM
002981298
April 5, 2004
ALLIANZ WORLDWIDE CARE(word)
OHIM
012446241
May 16, 2014
(v) Allianz Worldwide Care is a subsidiary of the Complainant, which is a provider of international health insurance policies offering both individual and group coverage. Allianz Worldwide Care is the registrant of the domain name created on March 14, 2000, under which it operates its official website (the Panel has determined these facts by inspecting the publicly available WhoIs data and the website available at "www.");
It should be noted that a great portion of the materials (Annexes) submitted by the Complainant along with the Complaint are in German language. Although the language of the subject proceedings is English, the Panel was nevertheless in position to review and take into consideration said materials in German because of the Panel's knowledge of German language. 5. Parties' Contentions A. Complainant
The Complainant, essentially, asserts that:
(i) it is one of the oldest and largest international insurance and financial service groups in the world and that the first company of today's Allianz group, Allianz Versicherungs-AG was founded in 1890 in Berlin, Germany;
(ii) since its inception, Allianz has continuously operated under the "Allianz" name and has used the ALLIANZ mark in connection with its insurance, healthcare and financial services products;
(iii) Allianz Worldwide Care is a subsidiary of Allianz SE and a provider of international health insurance policies offering both individual and group coverage;
(iv) it owns, directly, exclusive rights in the ALLIANZ mark and derivatives thereof in jurisdictions around the world. Under the ALLIANZ mark, the Complainant offers a wide range of insurance, underwriting, reinsurance and financial services. ALLIANZ is a distinctive and well-known mark used by the Complainant and Allianz group in connection with its several businesses for well over 100 years. ALLIANZ belongs to the most valuable trademarks in the world. Today ALLIANZ is ranked on 54th place under the best global brands by the renowned marketing agency Interbrand;
(v) the disputed domain name is confusingly similar to the trademarks in which the Complainant has rights. The disputed domain name and the ALLIANZ trademark are partly identical. The Respondent's use of the ALLIANZ trademark in combination with the prefix "www" creates confusion among Internet users;
(vi) the confusing similarity of the disputed domain name with the Complainant's ALLIANZ trademarks is based on the fact that the owner of the disputed domain name is calculating with typos by users, this is a bad faith and known under the name "typosquatting";
(vii) the Respondent has neither prior rights nor legitimate interests in respect of the disputed domain name. Following the registration of the disputed domain name, the Respondent started using it as a portal site for insurance and financial topics;
(viii) the Respondent holds no trademark registrations for any ALLIANZ trademark and has never received a license or any other form of authorization or consent from the Complainant to make use of the ALLIANZ trademark;
(ix) it is evident, that the Respondent specifically chose the disputed domain name in order to further his own business activities by exploiting the typos made by Internet users who are hoping to access the Complainant's website. By offering hyperlinks under the topics insurance and financing on its website, the Respondent is thus attracting users trying to access the Complainant's website to its website by trading on the fame of the Complainant's mark, which is connected in public perception with insurance and finance;
(x) the reputation and highly distinctive character of the Complainant's mark have already been ascertained by different authorities. In this respect, the Complainant invokes the decision issued by the Higher Regional Court of Munich in which the Court held that the ALLIANZ mark has an extraordinarily high level of awareness with the general population. In the same respect, the Complainant invokes a ruling by the OHIM that came to the same conclusion;
(xi) the Complainant is constantly taking legal steps against domain names containing or consisting of the name "Allianz". In the same respect, the Complainant has obtained a Temporary Restraining Order at the Munich District Court against the domain name .
(xii) the Complainant was successful in previous UDRP cases which included "typosquatting" practices of the respective respondents, including Allianz AG v. Michele Dinoia,WIPO Case No. D2005-0277; and Allianz SE v. Roy Lee / Traffic-D,WIPO Case No. D2012-1459;
(xiii) the Respondent is not commonly known by the disputed domain name, in the sense of paragraph 4(c)(ii) of the Policy;
(xiv) the Respondent is not making legitimate noncommercial or fair use of the disputed domain name, as per paragraph 4(c)(iii) of the Policy, since the Respondent is using the disputed domain name solely for commercial purposes;
(xv) the Respondent has registered and is using the disputed domain name in bad faith, since it is calculating with typos by users because the disputed domain name is being used to attract, for commercial gain, Internet users to the website at the disputed domain name by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the disputed domain name in the sense of the Policy, paragraph 4(b)(iv). B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
The Panel now proceeds to consider this matter on the merits in light of the Complaint, the absence of a response, the Policy, the Rules, the Supplemental Rules, and other applicable legal authority, pursuant to paragraph 15(a) of the Rules.
Paragraph 4(a) of the Policy provides that the Complainant must prove, with respect to the disputed domain name, each of the following:
(i) the disputed domain name is confusingly similar to trademark 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 disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Primarily, the Panel emphasizes that under the UDRP panel's consensus viewpoint, the mere fact of ownership of a registered trademark by the complainant is generally sufficient to satisfy the threshold requirement of having trademark rights (see paragraph 1.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, ("WIPO Overview 2.0")).
The Complainant has submitted sufficient evidence to show that it is the owner of the ALLIANZ WORLDWIDE CARE Community Trademark, whose protection extends to UK, where the Respondent is apparently located.
Moreover, it is well established that the threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the disputed domain name to determine likelihood of Internet user confusion. In order to satisfy this test, the relevant trademark would generally need to be recognizable as such within the disputed domain name, with the addition of common, dictionary, descriptive or negative terms typically being disregarded as insufficient to prevent threshold Internet user confusion (see paragraph 1.2 of the WIPO Overview 2.0).
It is evident that the disputed domain name incorporates the Complainant's ALLIANZ WORLDWIDE CARE trademark in its entirety, and that the same ALLIANZ WORLDWIDE CARE trademark of the Complainant is clearly recognizable within the same.
In this Panel's view, adding the prefix "www" to the ALLIANZ WORLDWIDE CARE trademark of the Complainant does very little or nothing to distinguish the disputed domain name from the Complainant's ALLIANZ WORLDWIDE CARE. "Www" is the commonly used acronym for "World Wide Web" and as such should be considered as common term, which lacks distinctiveness. It is highly likely that that many Internet users would misread the "www" prefix as the acronym for "World Wide Web", without noticing there is no dot between said prefix and the remainder of the disputed domain name. What is more, this Panel is of the opinion that the Respondent clearly did not intend to distinguish the disputed domain name from the Complainant's ALLIANZ WORLDWIDE CARE trademark, but that the Respondent intended to illegitimately benefit from the Complainant's trademark and confuse Internet users by calculating with user typos, the practice commonly known as "typosquatting". Therefore, this Panel holds that adding the same acronym for "World Wide Web" to the Complainant's ALLIANZ WORLDWIDE CARE trademark in the disputed domain name is not sufficient to prevent the confusing similarity of the disputed domain name with the same Complainant's trademark.
It should be noted that at least three other UDRP panels found that the "www" element lacks distinctiveness, being identical to the acronym for "World Wide Web" which forms part of most website addresses separated by the dot from their remaining elements and that adding the same element to the respective trademark in the disputed domain name is insufficient to prevent the finding of confusing similarity with such trademark (see Apple Inc. v. Protection,WIPO Case No. D2014-0187; Volvo Trademark Holding AB v. Michele Dinoia,WIPO Case No. D2004-0911; and Apple Inc. v. Contact Privacy Inc. / Grand Slam Co.,WIPO Case No. D2012-0844,.
In relation to the applicable generic Top-Level Domain ("gTLD") ".com" suffix in the disputed domain name, it is a consensus view that it is usually disregarded under the confusing similarity test (see paragraph 1.2 of the WIPO Overview 2.0).
For all the foregoing reasons, the Panel finds that the Complainant has satisfied the requirement set forth in paragraph 4(a)(i) of the Policy, i.e. has proven that the disputed domain name is confusingly similar to the Complainant's ALLIANZ WORLDWIDE CARE trademark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a respondent to demonstrate that it has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy. Those circumstances are:
(i) Before any notice to [the respondent] of the dispute, use by [the respondent] of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) Where [the respondent] (as an individual, business, or other organization) [has] been commonly known by the disputed domain name, even if [the respondent has] acquired no trademark or service mark rights; or
(iii) Where [the respondent is] making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The consensus view of UDRP panels on the onus of proof under paragraph 4(a)(ii) of the Policy is summarized in paragraph 2.1 of the WIPO Overview 2.0, whereby: "[…] a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP. […]".
In the subject matter case, the Respondent is in default, hence, the Panel has evaluated the arguments and evidence submitted by the Complainant and finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests to the disputed domain name.
Namely, the Complainant has established that it is the owner of ALLIANZ WORLDWIDE CARE Community Trademark, as well as that it has used the same trademark on the Internet, primarily through its subsidiary Allianz Worldwide Care and its website located at "www.".
The Panel observes that there is neither any relation, disclosed to the Panel or otherwise apparent from the records, between the Respondent and the Complainant, nor evidence that the Respondent has been commonly known by the disputed domain name or has been using the disputed domain name in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers.
Furthermore, from the records, it does not arise that the Complainant has ever licensed or otherwise permitted the Respondent to use its ALLIANZ WORLDWIDE CARE trademark, or to apply for or use any domain name incorporating the same trademark.
In this Panel's view, it can be safely concluded that the Respondent deliberately chose to include the Complainant's ALLIANZ WORLDWIDE CARE trademark in the disputed domain name, in order to achieve commercial gain by misleadingly diverting consumers, and that such use cannot be considered as a legitimate noncommercial or fair use.
Moreover, after having inspected the website operated under the disputed domain name, this Panel established that the Complainant's assertions are correct and that the Respondent offers hyperlinks to third party websites, including those which are direct competitors with the Complainant and its' subsidiary Allianz Worldwide Care without any other actual content that would represent bona fide offering of goods and services. In this regard, this Panel finds that the use of the domain name as a portal to third-parties' websites does not constitute a bona fide offering of goods and services. See, inter alia, Canadian Tire Corporation, Limited v. Texas International Property Associates,WIPO Case No. D2007-1407.
Accordingly, the Panel finds that the requirements set forth in paragraph 4(a)(ii) of the Policy have been fulfilled by the Complainant's making the prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name and by the Respondent's failing to produce any arguments or evidence to the contrary. C. Registered and Used in Bad Faith
For the purpose 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 the disputed 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 the holder's website or location or of a product or service on the holder's website or location.
Owing to a lack of the Response or any other evidence to the contrary, the Panel accepts the Complainant's arguments substantiated by evidence that, at the time of registration of the disputed domain name and creation of the website operated under the same, the Respondent was in bad faith, since the Respondent knew or should have known about the Complainant, its business and ALLIANZ WORLDWIDE CARE trademark. The Complainant has submitted sufficient evidence to show that it has used the ALLIANZ trademark and derivatives thereto, including ALLIANZ WORLDWIDE CARE trademark extensively over many years on the market and Internet, and that the same trademarks may be considered as well-known on the relevant market.
Therefore, in this Panel's view, it is safe to conclude that the Respondent was well aware of the Complainant, its business and its ALLIANZ WORLDWIDE CARE trademark when it registered the disputed domain name, and that the Respondent intention was for the disputed domain name to trade on the renown of the Complainant and its trademark. It would be a too much of a coincidence, that the Respondent decided to register a domain name using the exact same words as contained in the Complainant's ALLIANZ WORLDWIDE CARE trademark and the name of the Complainant's affiliate Allianz Worldwide Care which is a provider of international health insurance services within Allianz group, and to subsequently create a website under the disputed domain name which contains hyperlinks to third-party websites which offer insurance services competitive to those of the Complainant and its affiliate.
Panels in earlier UDRP cases have found bad faith registration based in part on proof that the respondent "knew or should have known" about the existence of the complainant's trademark and in particular in cases that involved trademarks widely used on the Internet (see paragraph 3.4 of the WIPO Overview 2.0).
Moreover, the Respondent must have been aware of the risk of deception and confusion that would result from the registration of the disputed domain name and the posting of the content of the website linked thereto, particularly, because the Internet users, who access the website operated under the disputed domain name, are redirected to third party websites offering services and products that compete with those offered by the Complainant's affiliate under ALLIANZ WORLDWIDE CARE trademark.
Therefore, the Panel finds that, by using the disputed domain name, the Respondent has intentionally attempted to attract Internet users to the Respondent's website, for commercial gain by means of links to third party websites, by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or the service on the Respondent's website, when, in fact, the Respondent's website redirects Internet users, amongst other, to other health insurance providers sites which are competitors to the insurance business operated by the Complainant and its affiliate.
For that reason, the Panel finds the provisions of paragraph 4(b)(iv) of the Policy to be applicable in this case, since the Respondent's registration and use of the disputed domain name interferes with the Complainant's business and Internet users might be misled about the source, sponsorship, affiliation, or endorsement of the Respondent's website.
Given the above, the Panel determines that the disputed domain name has been registered and is being used bad faith and that the Complainant fulfilled the third element under paragraph 4(a) 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 disputed domain name be transferred to the Complainant.
Mladen Vukmir
Sole Panelist
Date: March 14, 2016
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