The Complainant is AXA SA of Paris, France, represented by Selarl Candé - Blanchard - Ducamp, France.
The Respondent is Zhong Jinzhang of Ruijin, China. 2. The Domain Name and Registrar
The disputed domain name is registered with 1API GmbH (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 15, 2018. On June 15, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 18, 2018, 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 June 22, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 12, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 13, 2018.
The Center appointed Luca Barbero as the sole panelist in this matter on July 25, 2018. 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 of the AXA Group, one of the leading insurance companies worldwide.
The Complainant is the owner, amongst others, of the following trademark registrations:
- International trademark registration No. 490030 for AXA (word mark), registered on December 5, 1984, in classes 35, 36 and 39;
- European Union trademark registration Nos. 000373894 for AXA (figurative mark), filed on August 28, 1996, in classes 35 and 36, and 008772766 for AXA (word mark), filed on December 21, 2009, in classes 35 and 36;
- French trademark registration No. 1270658 for AXA (word mark), filed on January 10, 1984, in classes 35, 36, and 42;
- United States of America trademark registration No. 2072157 for AXA (word mark), filed on August 5, 1994, in class 36;
- Chinese trademark registration No. 1155921 for AXA (word mark), filed on January 10, 1997, in class 36.
The Complainant is also the owner, amongst others, of the domain names , registered on October 23, 1995, , registered on November 1, 1997, , registered on July 30, 2001, and , registered on May 20, 1996.
The disputed domain name was registered on April 3, 2018 and is pointed to a pornographic website displaying also sponsored banners and links to other adult content websites. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to the trademark AXA since it reproduces the mark AXA in its entirety with the sole addition of the descriptive terms “kidz” and “kare”, which would make reference to the English words “kids” and “care”. The Complainant also states that the addition of said terms to the trademark AXA could evoke insurance services, like a health insurance devoted to children or a child preventive care program sustained by the Complainant.
The Complainant points out that the Respondent does not have any rights or legitimate interests in the disputed domain name because:
i) there is no relationships between the Complainant and the Respondent and the Complainant has never licensed or otherwise permitted the Respondent to use its trademarks or to register any domain name including its trademarks;
ii) the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use, since it is pointing the disputed domain name to a website displaying explicit pornographic content and pay-per-click links to third-party pornographic websites from which the Respondent is likely deriving revenues;
iii) the Respondent does not need the disputed domain name, as it is already the owner of more than 100 domain names which all lead Internet users to the same pornographic contents as the ones displayed on the website to which the disputed domain name resolves.
The Complainant submits that the Respondent was aware of the Complainant’s trademark at the time of registration of the disputed domain name since the Complainant’s trademark AXA is internationally famous and the word “axa” has no dictionary meaning. The Complainant also highlights that the Complainant’s trademark AXA is not used on the Respondent’s website and that it is highly unlikely that it might correspond to the Respondent’s family name. Therefore, the Complainant concludes that the Respondent registered the disputed domain name in bad faith in order to take predatory advantage of the Complainant’s reputation.
The Complainant claims that the Respondent is using the disputed domain name in bad faith in an intentional attempt to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation or endorsement of its website or of a product or service on that website.
The Complainant further asserts that the porno-squatting conduct of the Respondent is inherently misleading and has the potential to tarnish the reputation of the Complainant’s trademark AXA.
The Complainant also states that the Respondent’s failure to justify a fair use of the disputed domain name upon receipt of the Complainant’s cease and desist letters confirms its bad faith intention. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 15(a) of the Rules: “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has established rights over the trademark AXA based on its several trademark registrations cited under Section 4 above.
The disputed domain name reproduces the trademark AXA in its entirety with the addition of the prefix “kidzkare” and the generic Top-Level domain “.com”, which can be disregarded being a mere technical requirement for registration.
The Panel concurs with the Complainant that the terms “kidz” and “kare” added to the trademark AXA in the disputed domain name could be perceived by Internet users as typographical variations of the English words “kids” and “care”. The Panel also finds that the addition of such descriptive terms to the trademark AXA does not exclude a likelihood of confusion with the Complainant’s trademark. See Section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”): “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”.
Therefore, the Panel finds that the Complainant has proven that the disputed domain name is confusingly similar to a trademark in which the Complainant has established rights according to paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel finds that the Complainant has made a prima facie case and that the Respondent, by not having submitted a Response, has failed to demonstrate rights or legitimate interests in the disputed domain name in accordance with paragraph 4(c) of the Policy for the following reasons.
According to the evidence on record, there is no relationship between the Complainant and the Respondent and the Complainant has not authorized the Respondent to register or use its trademark or the disputed domain name.
In addition, there is no evidence that the Respondent might be commonly known by the disputed domain name.
As mentioned above, the disputed domain name is pointed to a pornographic website which provides also several sponsored banners and links to other adult content websites.
In view of the above-described use of the disputed domain name, the Panel finds that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant’s trademark.
Therefore, the Panel finds that the Complainant has proven the requirement prescribed by paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the Complainant prove that the disputed domain name was registered and is being used by the Respondent in bad faith.
The Panel finds that, in view of the Complainant’s prior registration and use of the trademark AXA in connection with the Complainant’s insurance services - including in China, where the Respondent is based according to the WhoIs records – and of the well-known status of the trademark as demonstrated by the evidence submitted by the Complainant and recognized by prior UDRP panels (see, i.a., AXA S.A. v. Privacy Protect, LLC (PrivacyP) / Domain Admin, Domain Privacy Guard Sociedad Anónima Ltd,WIPO Case No. D2017-1703), the Complainant knew or should have known of the existence of the Complainant’s trademark at the time of the registration of the disputed domain name.
The registration and use and of a domain name which is evidently connected with a famous or well-known trademark, by someone with no connection with said trademark, suggests opportunistic bad faith (see Sanofi-aventis, Aventis Inc. v. Hostmaster, Domain Park Limited,WIPO Case No. D2007-1641).
In view of the Respondent’s use of the disputed domain name, confusingly similar to the Complainant’s trademark, in order to offer pornographic content and derive revenues, the Panel finds that the Respondent has intentionally attempted to attract Internet users to its website, for commercial gain, by creating a likelihood of confusion with the Complainant’s trademark. Moreover, the Respondent’s use of the disputed domain name is also apt to tarnish the reputation of the Complainant’s trademark AXA. See, along these lines section 3.12 of the WIPO Overview 3.0 and i.a. Guccio Gucci S.p.A v. Roberto Baggio,WIPO Case No. D2009-1196.
The Panel also finds that the Respondent’s failure to reply to the Complainant’s cease and desist letter and to submit a Response amount to additional circumstances evidencing the Respondent’s bad faith.
Therefore, the Panel finds that the Complainant has also proven the requirement prescribed by paragraph 4(a)(iii) 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.
Luca Barbero
Sole Panelist
Date: August 8, 2018
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