The Complainant is AXA SA of Paris, France, represented by Selarl Candé - Blanchard - Ducamp, France.
The Respondent is Heinz Wattenhofer of Esslingen, Switzerland. 2. The Domain Name and Registrar
The disputed domain name is registered with PSI-USA, Inc. dba Domain Robot (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 11, 2016. On July 11, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 12, 2016, 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 July 21, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 10, 2016. The Respondent did not submit any response. The Center notified the commencement of Panel’s appointment process on August 12, 2016.
The Center appointed Christos A. Theodoulou as the sole panelist in this matter on August 24, 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 a company organized under the laws of France.
According to the uncontested allegations of the Complainant, the Axa group existed since the 18th century and is famous in property and casualty insurance, life insurance and savings and asset management, proposed both to individuals and business companies. It employs one hundred and sixty six thousand people worldwide and is a world leader in insurance, savings and asset management. It is present in 64 countries and enjoys a worldwide reputation.
The Complainant Axa S.A. is the holding company of the Axa group. Trademark AXA is widely known.
The Complainant is the owner of many trademarks among others: 1) International Trademark AXA no. 490030 registered on December 5, 1984 in classes 35, 36 and 39 in particular for “advertising and business, insurance and financial services” duly renewed and designating inter alia Germany and Switzerland, where the Respondent resides. 2) European Union Trademark AXA (+ design) no. 373894 filed on August 28, 1996 and registered on July 29, 1998 in classes 35 and 36 in particular for insurance, personal insurance and other kinds of Insurance and duly renewed. 3) Swiss Trademark AXA no. P-453291 filed on January 26, 1998 in classes 35 and 36 in particular for insurance, personal insurance, bereavement insurance and duly renewed.
Further, Complainant owns various domain names containing trademark AXA such as: registered on October 28, 2009, registered on January 14, 2011, registered on July 30, 2001, registered on May 20, 1996. Further, Axa Conzern AG, an AXA’s subsidiary, is the owner of the domain name which conducts Internet users to the official website of AXA in Germany. Further, Axa Versicherung is another Axa’s German subsidiary.
The disputed domain name was registered on March 27, 2015 and it is passively held. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to trademarks or service marks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the disputed domain name and that the Respondent registered and is using the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Before engaging in the threefold discussion of paragraph 4(a) of the Policy, the Panel will briefly address the procedural issue relating to the default of the Respondent. The implications of a default in this case are telling since the Complainant has the burden of proof, according to paragraph 4(a) of the Policy (“In the administrative proceeding, the complainant must prove that each of these three elements are present”). As such, the Panel can not merely grant the Complainant’s request automatically due to the default, but it has to examine instead the evidence presented to determine whether or not the Complainant has proved its case, as required by the Policy. See FNAC v. Gauthier Raymond,WIPO Case No. D2004-0881; Sonofon A/S v. Vladimir Aleksic,WIPO Case No. D2007-0668; Gaudi Trade SpA v. Transure Enterprise Ltd,WIPO Case No. D2009-1028.
The Panel shall now proceed to the analysis of the evidence in this case, based on the three elements of paragraph 4(a) of the Policy. A. Identical or Confusingly Similar
The Complainant has presented evidence to demonstrate that it owns registered trademark rights in the mark AXA and that it has been actively using these trademarks.
The mere fact that the Respondent has registered the disputed domain name under the generic Top-Level Domain (“gTLD”) “.versicherung”, which means “insurance”, does not to this Panel affect the essence of the matter: the disputed domain name is identical or confusingly similar to the trademark of the Complainant and, in the circumstances of this case, is by itself sufficient to establish the criterion of identity or confusing similarity for purposes of the Policy, as many previous UDRP panels have found. See e.g., Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903; Koninklijke Philips Electronics N.V. v. K. Harjani Electronics Ltd.,WIPO Case No. D2002-1021; DFDS A/S v. NOLDC INC,WIPO Case No. D2006-1070; American Automobile Association, Inc. v. Bladimir Boyiko and Andrew Michailov,WIPO Case No. D2006-0252; Nationwide Mutual Insurance Company v. Whois Agent, Whois Privacy Protection Service, Inc./ Zhichao Yang,WIPO Case No. D2015-1129; Facebook, Inc., v. on behalf of customers,WIPO Case No. D2016-0244. Furthermore, confusion is created since the Complainant deals mainly with insurance.
In view of the above, the Panel finds that the Complainant has discharged its burden of proof on this point and holds that the disputed domain name is confusingly similar to the Complainant’s trademarks AXA. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exhaustive list of circumstances which, if found by a panel to be proved based on its evaluation of the evidence presented, shall demonstrate a registrant’s rights to or legitimate interests in a domain name. These examples are discussed in turn below, with regard to the specific facts of this case.
(i) Use or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services prior to the dispute: the Respondent is not making a bona fide offering of goods or services.
(ii) An indication that the Respondent has been commonly known by the disputed domain name, even if it has acquired no trademark rights: In this case, there is no such indication from the present record.
(iii) Legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks at issue: Again, in this case there is no such indication from the record. Passive holding of a domain name does not constitute “legitimate noncommercial or fair use”. See, e.g., ICICI Bank Limited and ICICI Prudential Life Insurance Corporation Limited v. Nitin Jindal, Across Ocean LLC,WIPO Case No. D2016-0564.
The Respondent does not seem to have any trademark registrations including the term “Axa”. Additionally, it is to be noted that the Respondent did not present evidence of any license by the Complainant, with whom there seems to exist no relationship whatsoever.
As a conclusion on this point, the Panel finds that the Complainant has established an uncontested, prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Complainant’s argumentation on this point is mainly based on the circumstances mentioned in Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 in order to demonstrate the Respondent’s bad faith registration and use of the disputed domain name.
In reviewing the present case, it appears that the Respondent has registered the disputed domain name in bad faith.
The Panel finds it highly unlikely that the Respondent would register randomly and unintentionally a domain name that is identical or confusingly similar to the Complainant’s AXA trademark. Rather, on a reasonable examination of the evidence, it seems to this Panel more likely that such registration and use would be motivated by a hoped-for capitalization, i.e., commercial gain from the Complainant’s reputation.
Further, according to the uncontested allegations of the Complainant, the disputed domain name at the time of filing the Complaint was passively held. Passive holding of a domain name does not prevent a finding of bad faith registration and use (see Telstra Corporation Limited v. Nuclear Marshmallows, supra).
The Panel also notes the default of the Respondent, which in the present circumstances “reinforces the inference of bad faith registration and bad faith use”. The Hongkong and Shanghai Banking Corporation Limited v. Bill Lynn,WIPO Case No. D2001-0915.
As a consequence of the above, the Panel finds that the Respondent registered and is using 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.
Christos A. Theodoulou
Sole Panelist
Date: August 30, 2016
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