The Complainant is Allianz SE, Germany, internally represented.
The Respondent is Jake Carter, Nigeria. 2. The Domain Name and Registrar
The disputed domain name is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 18, 2019. On June 19, 2019, 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 disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on July 1, 2019.
The Center verified that the Complaint together with the amended 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 5, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 25, 2019. On July 5, 2019, the Center received an email communication from a third party. The Respondent did not submit any response. Accordingly, the Center notified the Parties on July 26, 2019, that it would proceed to panel appointment.
The Center appointed Reyes Campello Estebaranz as the sole panelist in this matter on August 8, 2019. 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 parent company of an international group of companies founded in 1890, which provides insurance, health care and financial services worldwide, with over ninety million customers in more than seventy countries. Since the Complainant’s foundation, for over a hundred years, it has continuously operated under name “Allianz” and used the mark ALLIANZ in connection with its products and services, being this trademark firmly established.
The Complainant holds registered trademark rights in the mark ALLIANZ worldwide, alone or in combination with other figurative elements, of which the following are sufficiently representative for the present proceeding:
International Trademark No. 447004 ALLIANZ, word mark, registered September 12, 1979, in class 36;
International Trademark No. 714618 ALLIANZ, figurative, registered May 4, 1999, in classes 16, 35, and 36;
International Trademark No. 713841 ALLIANZ, figurative, registered May 3, 1999, in classes 16, 35, and 36;
European Union Trademark No. 000013656 ALLIANZ, word mark, registered July 22, 2002, in classes 16, 35, and 36;
European Union Trademark No. 002981298 ALLIANZ, figurative, registered April 5, 2004, in classes 16, 35, and 36.
The Complainant’s group further owns a domain name portfolio comprising its mark ALLIANZ, including , , , , , as well as , which is linked to its corporate website in connection with its products and services.
The disputed domain name was registered on March 27, 2019. It resolves to a website, in English language, apparently owned by a company that identifies itself as “Allianz-Private Funding”, which offers loans, mortgages and other financial services for the United States of America (“United States”) and Canadian market, having its head office in Atlanta (Unites States), and an office in Nunavut (Canada). This website includes in its heading, before the text content of the site, the name “Allianz” with its initial letter “A” in capital, followed, underneath, by the words “private funding” in plain letters. The contact information section includes addresses, telephone numbers and emails from apparently both its head office (in Atlanta) and its Canada office. 5. Parties’ Contentions A. Complainant
Key contentions of the Complaint may be summarized as follows:
Through its intensive use and promotion, the trademark ALLIANZ has acquired worldwide reputation. The international marketing agency Interbrand, in its Best Global Brands 2018 study, has ranked it as number 49, and its reputation has been recognized by various court decisions and a European Intellectual Property Office decision, as well as in prior decisions under the Policy.
The disputed domain name reproduces the Complainant’s trademark ALLIANZ, with the addition of the terms “private funding”, which refers to the same Complainant’s business that includes financial services, and are insufficient to prevent Internet users’ confusion. The Complainant’s trademark is recognizable within the disputed domain name. Therefore, the disputed domain name is confusingly similar to the Complainant’s mark.
The Respondent has no rights or legitimate interests in the disputed domain name, as it holds no trademark registration for any mark including the word “allianz”, it is not a licensee of the Complainant, nor has him been otherwise authorized to register and use the Complainant’s trademark ALLIANZ in the disputed domain name. The Respondent’s activities do not correspond to any of the circumstances set forth in the Policy, paragraph 4(c). The Respondent is not commonly known by the disputed domain name, he is not making a legitimate noncommercial or fair use of the disputed domain name, and he has not used the disputed domain name in connection to a bona fide offering of goods or services.
The Complainant’s trademark ALLIANZ is well-known worldwide in many countries especially in connection to insurance and financial services. Therefore, it cannot be reasonably argued that the Respondent was unaware of this mark when registering the disputed domain name. This conclusion is supported by the fact that the disputed domain name wholly incorporates the Complainant’s mark, and the term “Allianz” is a German word, however, the Respondent’s website and the disputed domain name do not contain any other reference to Germany or the German language. It is unlikely that the Respondent simply selected unintentionally the Complainant’s distinctive reputed mark. On the contrary, the Respondent clearly sought to register and used the disputed domain name in bad faith because of its association with the Complainant, hoping to capitalize on the Complainant’s reputation by deliberately creating a likelihood of confusion. Furthermore, the Respondent has intentionally attempted to use the disputed domain name to obtain private information and data from Internet users, by creating a likelihood of confusion with the Complainant’s mark.
The Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. An email from a third party was received claiming to provide webhosting and alleging that the disputed domain name belong to one of their customers. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that, in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.
The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has authority to decide the dispute.
Paragraph 15(a) of the Rules provides that “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”. The Panel has taken into consideration all of the evidence, annexed material and submissions provided by the Parties. A. Identical or Confusingly Similar
In cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered identical or confusingly similar to that mark for purposes of the Policy. In such cases, the addition of terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element, although the nature of such additional term(s) may bear on assessment of the second and third elements. See sections 1.7 and 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Further, the applicable generic Top-Level Domain (“gTLD”) in a domain name is considered a standard technical registration requirement and, as such, is generally disregarded under the first element confusing similarity test, irrespective of its particular ordinary meaning, although said meaning may be relevant to the assessment of the second and third elements. See section 1.11, WIPO Overview 3.0.
The Complainant indisputably has rights in the registered trademark ALLIANZ. The disputed domain name incorporates this mark in its entirety followed by a dash “-”, which facilitates the direct perception of the mark, and the terms “private funding”, which relates to the Complainant’s same financial business. The Complainant’s trademark ALLIANZ is directly recognizable in the disputed domain name, and the gTLD “.com” adds no distinctive meaning, being a technical requirement, generally disregarded for the purpose of the analysis of the confusing similarity. Accordingly, this Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark, and the first element of the Policy under paragraph 4(a)(i) has been satisfied. B. Rights or Legitimate Interests
Although the Complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, prior UDRP panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily if not exclusively within the knowledge of the Respondent. Thus, the consensus view is that paragraph 4(c) of the Policy shifts to the Respondent the burden of coming forward with evidence of rights or legitimate interests in the disputed domain name, once the Complainant has made a prima facie showing indicating the absence of such rights or legitimate interests.
The Complainant has asserted that the Respondent does not own any trademark for the word “Allianz”, and he is not a licensee nor has him been otherwise authorized to use the mark ALLIANZ. Further, the Complainant has alleged that there is no evidence that the Respondent is commonly known by the disputed domain name, has any other rights, or made any demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services or for any legitimate noncommercial or fair purpose.
This effectively shifts the burden to the Respondent of producing evidence of rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy provides for the Respondent to contest the Complainant’s prima facie case under paragraph 4(a)(ii) of the Policy and to establish rights or legitimate interests in the disputed domain name by demonstrating, without limitation:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The evidence provided by the Complainant shows the disputed domain name is linked to a website, which indicates in its content that it is owned by a company identified as “Allianz - Private Funding”, offering loans, mortgages and other financial services and solutions, and operating in United States and Canada.
However, the Respondent’s name according the disputed domain name’s registration is different to the one indicated in this website, being an individual located in Nigeria, and the Respondent has deliberately chosen not to reply to the Complaint, not providing any evidence of being commonly known by the disputed domain name, apart from the website content linked to it. Further, this website does not include a clear reference to the company Allianz - Private Funding, not indicating its fiscal number, legal registration, or any reference to its social form, and/or country of incorporation.
A core factor in assessing fair use of the disputed domain name is that it does not falsely suggest affiliation with the Complainant’s trademark. See section 2.5, WIPO Overview 3.0. The disputed domain name incorporates the Complainant’s trademark in its entirety adding descriptive terms for the financial business (“private funding”), which also may point to the Complainant and its notorious trademark. Therefore, the Panel considers that there is a high risk of implied affiliation. The Panel further notes the extensive presence of the trademark ALLIANZ over the Internet, as well as the extensive use of this mark worldwide, including United States and Canada, where the Respondent apparently operates according to the website content linked to the disputed domain name. Furthermore, the Panel notes the use of the trademark ALLIANZ in Nigeria, where the Respondent is apparently located according the information received by the Registrar, country where, according to the information provided in the Complainant’s corporate website, the Complainant’s group acquired a company, as part of its growth strategy in Africa, in 2018. The Panel, in use of the general powers articulated in the Policy, has visited the Complainant’s website. See section 4.8, WIPO Overview 3.0.
The Panel further considers that the use of the disputed domain name linked to a website related to the same business where the Complainant’s trademark is used, well established and notorious (the insurance, financial and health care industries), contributes to a high risk of affiliation and confusion. The website linked to the disputed domain name does not include any clear reference to the ownership of the disputed domain name nor does it include any reference to the lack of relationship with the Complainant’s trademark and business.
It is further to be noted that the website linked to the disputed domain name includes in its heading the mark ALLIANZ with a type of letters and similar representation to the figurative marks registered and used by the Complainant (the initial letter “A” in capital and the rest in plain letters). The descriptive words “private funding” are located underneath this mark all in plain letters, reinforcing the impression of being just the description of the activities and services provided under the mark. The Panel considers that this specific representation, together with all other cumulative circumstances of the case, contributes to undermine a potential legitimate use of the disputed domain namein connection with a bona fide offering of goods or services.
It is further remarkable the Respondent’s attitude deliberately choosing not to reply to the Complaint, not providing any explanation connected to the above-mentioned circumstances (included in paragraph 4(c) of the Policy) or any other that may be considered as a fair use or legitimate interests in the disputed domain name.
All the above-mentioned circumstances lead the Panel to conclude that the Respondent has not produced evidence to rebut the Complainant’s prima facie case, and all this case cumulative facts and circumstances point to consider that the Respondent lacks of any rights or legitimate interests in the disputed domain name. Therefore, the second element of the Policy under paragraph 4(a)(ii) has been established. C. Registered and Used in Bad Faith
The Policy, paragraph 4(a)(iii), requires that the Complainant establish that the disputed domain name “has been registered and is being used in bad faith.”
At the time of the disputed domain name’s registration, this Panel considers unlikely that the Respondent did not know about ALLIANZ mark, and did not have it in mind. Several factors in this case lead to this conclusion.
The Panel notes the extensive presence of the trademark ALLIANZ over the Internet, as well as its extensive use and promotion worldwide, including Nigeria, where the Respondent is located (according to the information provided in the disputed domain name’s registration), United States and Canada, where the Respondent operates (according to the website content linked to the disputed domain name). The Complainant’s trademark is used and registered for more than hundred years worldwide, being considered notorious in the insurance and financial sectors and well-known by the public in general. Under these circumstances, the disputed domain name incorporates the Complainant’s trademark in its entirety, which intrinsically creates a likelihood of confusion or at least a high risk of implied affiliation, adding the descriptive terms “private funding”, which also point to the Complainant and its mark referring to the same business. Further, the disputed domain name is used in connection to a website that also refers to the same business (financial services), which increases the intrinsic risk of confusion and association. Furthermore, said website does not include any clear reference to its ownership or that of the disputed domain name, not indicating its fiscal number, legal registration, or any reference to its social form and/or country of incorporation.
The Panel further notes that the contact details of the WhoIs were private, but, according to the Registrar, the Respondent’s location is in Nigeria. However, the website content linked to the disputed domain name contains no reference to Nigeria, it is provided solely in English, and indicates that it is directed to United States and Canadian markets. These circumstances indicate in the Panel’s opinion the existence of a discordancy, having the Respondent provided probably false information in the disputed domain name’s registration.
The Panel further considers relevant the circumstance of using the German word “Allianz” instead of its English equivalent “alliance” in the disputed domain name, not finding any reasonable point of connection between the website content linked to the disputed domain name or in the information provided in the disputed domain name’s registration, and the German language or the German market.
Other relevant circumstance is the mark’s representation in the website’s heading linked to the disputed domain name, with similar letters and representation to the figurative marks registered and used by the Complainant (the initial letter “A” in capital and the rest in plain letters), adding the descriptive words “private funding” underneath this mark all in plain letters. The Panel considers that this particular representation reinforces an intention of creating association or affiliation to the Complainant’s mark.
It is further remarkable the Respondent’s attitude deliberately choosing not to reply to the Complaint.
The Policy’s non-exhaustive list of bad faith circumstances in paragraph 4(b) includes the following:
“(i) circumstances indicating that you have registered or you have acquired the domain names 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 your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location.”
Taking into account all cumulative circumstances of this case, the Panel considers that the disputed domain name was very likely registered and used with the intention of creating a likelihood of confusion as to the affiliation or association with the Complainant and its reputed trademark, trying to misleadingly attract Internet users to the Respondent’s website, and disrupting the Complainant’s business. It is further highly probable that the Respondent acted in bad faith trying to obtain private information and data from its website visitors or through emails connected to the disputed domain name, based on their association with the Complainant and the reputed trademark ALLIANZ.
All the above-mentioned lead the Panel to conclude that the disputed domain name was registered and is being used in bad faith. Accordingly, the Panel concludes that the Complainant has met its burden of establishing that the Respondent registered and is using the disputed domain name in bad faith under the third element 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.
Reyes Campello Estebaranz
Sole Panelist
Date: August 14, 2019
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