The Complainant is Allianz SE, Germany, represented internally.
The Respondent is Guillermo Gomez, DOM LTD, Dominica. 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 July 23, 2019. On July 23, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 23, 2019, 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 31, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 20, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 21, 2019.
The Center appointed Ian Blackshaw as the sole panelist in this matter on August 27, 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 ultimate parent company of one of the oldest and largest international insurance and financial services Groups in the world. The first company of today’s Allianz Group, Allianz Versicherungs-AG, was founded in 1890 in Berlin, Germany. In 1893 its first international branch, an office in London, was opened.
The Complainant is one of the leading integrated financial services providers worldwide. With approximately 142,000 employees worldwide, the Complainant serves approximately 92 million customers in more than 70 countries.
On the insurance side, the Complainant is the market leader in the German market and has a strong international presence. The Complainant is also one of the world’s largest asset managers, with third party assets of EUR 1,436 bn. under management at the end of 2018.
In 2018, the Complainant had total revenues worldwide of EUR 130,6 bn.
Since its inception, the Complainant has continuously operated under the ALLIANZ corporate name and has used the ALLIANZ trademark in connection with its insurance, healthcare and financial services products.
The Complainant has registered and protected the ALLIANZ trademark worldwide.
The following table lists some of the Complainant’s trademark registrations:
Trademark
Country/Register
Reg. No.
Reg. Date
ALLIANZ
International Register
447 004
September 12,1979
ALLIANZ
International Register
714 618
May 4,1999
ALLIANZ and Design
International Register
713 841
May 3, 1999
ALLIANZ
Germany
987 481
July 11,1979
ALLIANZ
Germany
399 27 827
July 16,1999
ALLIANZ
European Union Trademark
000013656
July 22,2002
ALLIANZ and Design
European Union Trademark
002981298
April 5, 2004
Copies of these registrations, including comprehensive lists of services, all of which, at least, include insurance and financial affairs, have been provided to the Panel.
The Complainant has also registered its flagship brand ALLIANZ comprehensively under the available Top Level Domains.
The following table lists some of the domain names which are registered in the name of Allianz Technology SE, the German IT affiliate company of the Complainant, or its local subsidiary:
Allianz Technology SE, Germany
Allianz Technology SE, Germany
Allianz Technology SE, Germany
Allianz Vie, France
Allianz Global Investors, USA
Allianz Technology SE, Germany
The disputed domain name was registered on July 16, 2019 and resolves to a website offering international express deliveries and global freight forwording services using the Complainant’s logo. 5. Parties’ Contentions
A.Complainant
The Complainant makes the following assertions:
- The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
“The Internet user will recognize the famous corporate name and trademark ALLIANZ of the Complainant in the disputed domain name. Through the disputed domain name, customers will expect to reach one of the websites belonging to the Complainant or one of its subsidiaries: The same applies if a customer receives email correspondence under the disputed domain name.
With the use of the name ALLIANZ, the clear impression is made that the disputed domain name refers to the renowned ALLIANZ mark. Thus, the disputed domain name leads customers to the wrong domain and increases the danger of confusion and exploitation.
As stated above, the Complainant is one of the largest providers of all kind of financial services worldwide, in particular, insurance, asset management and assistance services.
The use of the disputed domain name for such services as international express deliveries and global freight forwarding services implies that the Respondent belongs to the Complainant’s Group and deludes potential customers into thinking that the Respondent is part of that Group. Internet users will foremost recognize the ALLIANZ brand name in the disputed domain name. Thus, the wording of the disputed domain name leads t o the conclusion that the disputed domain name could be part of the Complainant’s Group.
Therefore, there is a likelihood of confusion between the Complainant’s ALLIANZ trademark and the disputed domain name.
In this regard, it is to be noted that the reputation and highly distinctive character of the Complainant’s trademark have already been confirmed by different authorities.
One example is a decision by the Oberlandesgericht Miinchen (Higher Regional Court of Munich) dated November 25,1999. In this judgement, the Court ruled that the hip-hop Group “Die Allianz” was infringing the Complainant’s trademarks. One reason for this favourable decision was that the Court held that the ALLIANZ trademark has an extraordinarily high level of recognition amongst the general public. (Evidence of this judgement has been provided to the Panel.)
The Office for Harmonization in the Internal Market came to the same conclusion, for example, in the ruling in the opposition proceedings against the contested application “Alliance Capital” dated December 9, 2003. (Again, evidence of this ruling has been provided to the Panel.)
The Complainant is constantly taking legal steps against other domain names containing or consisting of the name ALLIANZ. It has obtained a temporary restraining order at the Landgericht Miinchen I (Munich District Court I) in a proceeding against the domain name . The owner of this domain name has not opposed this decision.” (A copy of this decision, together with an English translation, has been provided to the Panel.)
The Complainant has also provided copies to the Panel of previous UDRP complaints and decisions in the cases of ; ; and , all of which were decided in favour of the Complainant.
- The Respondent has no rights or legitimate interests in respect of the disputed domain name.
“Every connection with the disputed domain name means damage to the valuable image of the Complainant and poses a threat to individuals that are potentially interested in a business relationship for international express deliveries and global freight forwarding services with the Complainant’s Group.
The Respondent has no rights or legitimate interests in the ALLIANZ trademark or the goodwill that the Complainant has developed in its mark. On the contrary, the Respondent holds no trademark registrations for any ALLIANZ trademark and has never received any license or any other form of authorization or consent from the Complainant to make use of the ALLIANZ trademark Therefore, the Respondent has no right to or legitimate interest in the disputed domain name.
It is obvious that the Respondent is exploiting the fact that Internet users are hoping to access a website that or to communicate with someone who belongs to the Complainant’s Group of companies. The Respondent is thus trading on the fame of the Complainant’s trademark, which is connected in the public perception with insurance and financial services. Moreover, the Respondent is exploiting the good name of the Complainant. It is apparent that the Respondent is a “free-rider” and fraudster trying to take unfair advantage of the well-known trademark ALLIANZ of the Complainant.
The Respondent’s activities do not correspond to any of the circumstances set forth in the Policy, paragraph 4(c), that would evidence any rights to or legitimate interests in the disputed domain name. Also, before having been notified of this dispute, the Respondent did not use the disputed domain name in connection with a bona fide offering of goods or services, Policy, paragraph 4(c)(i).
Furthermore, the Respondent is not commonly known by the domain name, Policy, paragraph 4(c)(ii).
Finally, the Complainant’s prior rights bar the Respondent from being known by the disputed domain name.
The Respondent is also not making legitimate noncommercial or fair use of the disputed domain name, Policy, paragraph 4(c)(iii).
For all the above reasons, the Respondent has no legitimate rights or interests in the disputed domain name.”
- The disputed domain name was registered and is being used in bad faith.
“The Respondent intentionally attempted, by using the disputed domain name, to convince Internet users to act as being instructed (i.e. to reveal private information and data) by creating a likelihood of confusion with the Complainant’s mark as to the source; sponsorship, affiliation or endorsement of the disputed domain name, Policy, paragraph 4(b)(iv).
The ALLIANZ trademark, as already demonstrated above, is very well-known in many countries all over the world, especially with regard to insurance and financial affairs. The Complainant has a strong reputation that is based on customers’ trust in its service marks.
Thus, it cannot be reasonably argued that the Respondent could have been unaware of the ALLIANZ trademark when registering the disputed domain name. This conclusion is supported by the fact that the disputed domain name incorporates the Complainant’s trademark and logo. Moreover, the disputed domain name refers to the German term “Allianz” without any other reference to Germany or the German language at all. Hence, it is most unlikely that the Respondent just happened unintentionally to select the Complainant’s distinctive trademark and combine it with another Top Level domain.
The Respondent clearly sought to register the disputed domain name because of its association with the Complainant and hoped to capitalise on the Complainant’s reputation.
Therefore, it is inevitable that the Respondent acted in bad faith when registering the disputed domain name and continues to do so by using the email address ([…]@) and website to phish private data from individuals interested in the faked international express deliveries and global freight forwarding services.” B. Respondent
The Respondent, having been duly notified of the Complaint and of these proceedings, did not reply to the Complainant’s contentions or take any part in these proceedings. 6. Discussion and Findings
To qualify for cancellation or transfer of the disputed domain name, the Complainant must prove each of the following elements of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark 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.
In accordance with paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.
In accordance with paragraph 14(a) of the Rules, in the event that a party, in the absence of exceptional circumstances, does not comply with any of the time periods established by the Rules or the Panel, the Panel shall proceed to a decision on the Complaint; and under paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences as it considers appropriate.
In accordance with paragraph 10(d) of the Rules, the Panel shall determine the admissibility, relevance, materiality and weight of the evidence.
In previous UDRP cases in which respondents failed to file a response, the panels’ decisions were based upon complainants’ reasonable assertions and evidence, as well as inferences drawn from respondents’ failure to reply. See The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064; and also Köstritzer Schwarzbierbrauerei v. Macros-Telekom Corp.,WIPO Case No. D2001-0936.
Nevertheless, the Panel must not decide in the Complainant’s favor solely based on the Respondent’s default. See Cortefiel, S.A. v. Miguel García Quintas,WIPO Case No. D2000-0140. In the present case, the Panel must decide whether the Complainant has introduced elements of proof, which allow the Panel to conclude that its allegations are true. A. Identical or Confusingly Similar
It is well established in previous UDRP decisions that, where the disputed domain name incorporates a complainant’s registered trademark, this may be sufficient to establish that the disputed domain name is identical or confusingly similar for the purposes of the Policy. See Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525.
In the present case, the disputed domain name incorporates the Complainant’s ALLIANZ registered trademark and this makes the disputed domain name confusingly similar to the Complainant’s well-known ALLIANZ registered trademark.
The Panel agrees with the Complainant’s contention that the inclusion of the word “carrier” in the disputed domain name is irrelevant, being purely descriptive, and thus does not have the effect of avoiding any confusing similarity. See Volkswagen AG v. Privacy Protection Services,WIPO Case No. D2012-2066. See also Osram Sylvania, Inc. v. Jason Blevins,WIPO Case No. D2009-0233.
In view of the above, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s well-known ALLIANZ registered trademark, in which the Complainant has demonstrated, to the satisfaction of the Panel, that it has prior rights in and commercial use of the same.
The first element of the Policy, therefore, has been met. B. Rights or Legitimate Interests
In order to determine whether the Respondent has any rights or legitimate interests in respect of the disputed domain name (paragraph 4(c) of the Policy), attention must be paid to any of the following circumstances, in particular, but without limitation:
- whether there is any evidence of the Respondent’s use 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 before any notice to the Respondent of the dispute;
- whether 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;
- whether 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.
There is no evidence before the Panel to show that the Respondent was acting in pursuance of any rights or legitimate interests with respect to registering the disputed domain name. On the contrary, if the Respondent had any such rights or legitimate interests, the Respondent would have reasonably been expected to assert them, which the Respondent clearly has not done so, by not replying to the Complaint or taking any part in these proceedings. See Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110.
There is no evidence either before the Panel that the Respondent has been authorized or licensed by the Complainant to use the Complainant’s well-known ALLIANZ registered trademark. In fact, in the view of the Panel, the adoption by the Respondent of a domain name confusingly similar to the Complainant’s well-known ALLIANZ registered trademark, which the Panel considers, as asserted above by the Complainant, would appear not to be by mere chance but by design, inevitably leads to confusion on the part of Internet users and consumers seeking information about the Complainant and its services and products.
Further, the Panel finds that the Respondent is consequentially trading unfairly on the Complainant’s well-known ALLIANZ registered trademark and also the valuable goodwill that the Complainant has established in that trademark through the Complainant’s legal actions and prior commercial use, as evidenced above, without any right or legal justification for doing so.
Also, the Panel finds no evidence that the Respondent has used or undertaken any demonstrable preparations to use the disputed domain name in connection with any bona fide offering of goods or services.
Likewise, no evidence has been adduced that the Respondent has commonly been known by the disputed domain name; nor, for the reasons mentioned above, is the Respondent making a legitimate noncommercial or fair use of the disputed domain name.
Therefore, for all the above reasons and those advanced above by the Complainant, the Panel concludes that the Respondent has neither rights nor legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Regarding the bad faith requirement, paragraph 4(b) of the Policy lists four examples of acts, which constitute prima facie evidence of bad faith. However, this list is not exhaustive, but merely illustrative. See Nova Banka v. Iris,WIPO Case No. D2003-0366.
Paragraph 4(b)(iv) of the Policy is particularly relevant to the present case and provides that there is evidence of bad faith in the following circumstances:
“(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [its] 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 [the respondent’s] web site or location or of a product or service on [its] web site or location.”
Based on the evidence provided on the record, the Panel considers that the Respondent, by registering the disputed domain name incorporating the Complainant’s well-known ALLIANZ registered trademark, is trading unfairly on the Complainant’s valuable goodwill established in such trademark.
The nature of the disputed domain name, including the descriptor “carrier”, in the view of the Panel, is bound to lead to confusion on the part of consumers and Internet users seeking information about the Complainant and its services and products marketed under its well-known ALLIANZ registered trademark.
Furthermore, in fact, the use of the word “carrier” adds to this confusion, given that the services of the Complainant include, inter alia, the provision of marine insurance cover in respect of marine, transport and logistics risks.
Also, the effect of such conduct on the part of the Respondent is to mislead Internet users and consumers into thinking that the Respondent is, in some way or another, connected to, sponsored by or affiliated with the Complainant and its business; or that the Respondent’s activities are approved or endorsed by the Complainant. None of which the Panel can find, on the basis of the evidence provided on the record, is, in fact, the situation. Such misleading consequences, in the view of the Panel, are indicative of bad faith on the part of the Respondent. See Columbia Insurance Company v. Pampered Gourmet,WIPO Case No. D2004-0649.
Furthermore, see also Microsoft Corporation v. J. Holiday Co.,WIPO Case No. D2000-1493, in which it was stated that “consumers expect to find a company on the Internet at a domain name address comprised of the company’s name or trademark”. As this is not, in fact, the situation in the present case, the use by the Respondent of the disputed domain name is confusing and misleading and, in the view of the Panel, this is a further indication that the disputed domain name was registered and is being used in bad faith.
Again, in the absence of any explanation to the contrary by the Respondent, of which none is forthcoming on the record, the Panel agrees with the Complainant’s contention that the Respondent did not register and use the disputed domain name by chance; but, as noted above, appears to have been – or, at least, should have been – fully aware of the notoriety of the Complainant and its business activity, as well as its well-known ALLIANZ registered trademark and its prior commercial use.
Finally, the failure of the Respondent to answer the Complaint or take any part in the present proceedings, again, in the view of the Panel, is another indication of bad faith on the part of the Respondent. See Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787.
Therefore, taking all these particular facts and circumstances into account, including the Respondent’s use of the misleading email address of “[…]@” for the improper purposes mentioned above by the Complainant, and for all the above-mentioned reasons, as well as the arguments advanced by the Complainant in its contentions, as set out above, the Panel concludes that the Respondent has 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.
Ian Blackshaw
Sole Panelist
Date: August 28, 2019
Full & Egal Universal Law Academy