The Complainant is ageas SA/NV, Belgium, represented by Gevers Legal NV, Belgium.
The Respondent is Tri Nguy\u1ec5n, Viet Nam, self-represented. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on November 29, 2019. On December 2, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On December 3, 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 December 5, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 25, 2019. The Response was filed with the Center on December 10, 2019. The Center appointed W. Scott Blackmer as the sole panelist in this matter on January 22, 2020. 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 Belgian public limited company headquartered in Brussels, Belgium. It is Belgium’s largest insurance company and operates in fourteen countries, typically through joint ventures such as MB Ageas Life in Viet Nam, with a total of more than 39 million customers. The Complainant’s principal website is at “www.ageas.com”. The Vietnamese joint venture operates a website (in Vietnamese and English) at “www.mbageas.life”. With its roots in Assurances Générales from the 1820s, the Complainant group was known as Fortis Holding until 2010, when it was renamed “ageas” and went to market with AGEAS word marks and figurative marks featuring the AGEAS name. Its registered trademarks, which are advertised extensively in in its markets in Europe and Asia, include the following: Mark Jurisdiction Registration Number Registration Date AGEAS (word) Benelux 0883432 June 22, 2010 AGEAS (word) European Union 009143686 April 1, 2011 AGEAS (figurative) International Trademark (including Viet Nam designation) 1249640 April 4, 2015 AGEAS (figurative) Viet Nam 40271196000 November 9, 2016 The Registrar reports that the Domain Name In the Response and in correspondence with the Complainant and the Center, the Respondent identifies himself as Nguyễn Minh Trí (or Tri Nguyen Minh, to accommodate western spelling and lead with the first given name), a resident of Viet Nam. The Response indicates that the Respondent intends to use the Domain Name No related sites have been developed to date, however. The Complaint attaches screenshots showing that the Domain Names were parked, apparently for a matter of months, with the Registrar’s “free parking” function. This resolved to a landing page advertising the Registrar’s services, providing a link for those interested in purchasing the Domain Name, and featuring third-party, pay-per-click (“PPC”) advertising links, including several relating to insurance. (As is evident from the Registrar’s website, “free parking” does not inure to the benefit of the registrant; registrants must subscribe to a paid plan in order to share in PPC revenues from a parked domain name.) At the time of this Decision, both Domain Names redirect Internet users to the Respondent’s personal Twitter social media account, which has little content, none relating to Yoga. The Complainant cites correspondence between the parties concerning the proposed purchase, first of the Domain Name “Thanks for your approach. My domain targeting for insurance industry. Is it possible to share your budget so we can work out a reasonable hand over fee for both side.” The Complainant’s representative suggested EUR 500, and the Respondent replied as follows on October 17, 2019: “I assumed that the average for 1 agency generate 7000€ per month. Therefor in 10 years that agency will generate average 840,000€. In the real world the insurance company make huge profit than that. That’s the number I want to hear from your client.” On the same day, the Respondent registered the second Domain Name, Both Domain Names subsequently redirect Internet users to the Respondent’s personal Twitter social media account, which has little content, none relating to Yoga, but including at least one Tweet mentioning the Complainant’s Twitter account. 5. Parties’ Contentions A. Complainant The Complainant asserts that both Domain Names are confusingly similar to its AGEAS mark, which they incorporate in its entirety. The Complainant argues that the Respondent has no authorization to use the mark, nor any other rights or legitimate interests in the Domain Names. The Complainant contends that its mark is well established, internationally and specifically in Viet Nam, and that the Respondent’s choice of the “.life” generic Top-Level Domain (“gTLD”), and the subsequent correspondence with the Complainant demonstrates an awareness of the Complainant’s prominence in the life insurance industry. The Domain Names have not been used for a bona fide commercial purpose but instead have been used to advertise third-party commercial services, including those of competitors, and later reinforcing the false affiliation with social media references. Moreover, the Respondent has tried to sell the Domain Names for excessive prices to the Complainant, compounding the evidence of bad faith by registering a second Domain Name after making the initial exorbitant demand and redirecting the first Domain Name to a competitor’s website. B. Respondent The Respondent does not challenge the Complainant’s trademarks but argues they would not be confused with the Domain Names, in which the gTLDs, “.life” and “.live”, respectively, form part of an English phrase with the second-level domain name: “age as life” and “age as live”. The Respondent suggests that these phrases are relevant to the intended use of the Domain Names in connection with sites promoting healthy living through the practice of Yoga. The Respondent denies any intent to create confusion with the Complainant and points out that the Respondent has acquired other, similar Domain Names for use in connection with the projected Yoga sites: The Respondent denies acquiring the Domain Names with the intent to sell them for an extortionate price to the Complainant. Reviewing the history of correspondence with the Complainant, the Respondent decries the Complainant’s initial approaches to him using “faked names” to “trap” him. The Respondent explains that he did not want to sell and suggested high prices to discourage the Complainant when its lawyer later continued to press him. “Because I didn’t intend to sell and thought that they couldn’t buy at that price, therefore, I continued to offer a high price.” Meanwhile, the Respondent acquired the second Domain Name, 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) the 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 domain name; and (iii) the domain name has been registered and is being used in bad faith. Under 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”. A. Identical or Confusingly Similar The Complainant unquestionably holds registered AGEAS trademarks. The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7. The Domain Names both incorporate the Complainant’s coined mark AGEAS in its entirety. The gTLD, “.life” and “.live” in this case, respectively, is normally disregarded. Section 1.11.2. Here, the Respondent urges the Panel to consider that the Domain Names avoid confusion because they can be read alternatively as English phrases if the TLD is included. This will not be seen by all or perhaps most Internet users, and it does not avoid confusion. It is not dissimilar to the addition of generic or dictionary terms to a distinctive trademark at the second level of a domain name and does not substantially avoid confusion in appearance and sense. See section 1.7. Accordingly, the Panel finds the Domain Names confusingly similar to the Complainant’s mark for purposes of the Policy and concludes that the Complainant has established the first element of the Complaint. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the Respondent may establish rights or legitimate interests in the Domain Name, by demonstrating any of the following: (i) before any notice to it of the dispute, the Respondent’s 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) that the Respondent has been commonly known by the Domain Name, even if it has acquired no trademark or service mark rights; or (iii) the Respondent is 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. Since a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. The Complainant has demonstrated trademark rights, a lack of permission to incorporate the Complainant’s mark in the Domain Names, and the Respondent’s failure to use the Domain Names for relevant commercial or noncommercial purposes. The Respondent describes an intent to use the Domain Names for commercial Yoga sites relevant to the English phrases formed by combining the second and third elements of the Domain Names, further suggesting a corresponding value in Vietnamese: “Ageas.life is a pun for the phrase ‘Age As Life’ – In Vietnamese language, it means: Age is like life (life) … In a similar way, Ageas.live is from the phrase ‘Age As Live’ - In Vietnamese language, it means: Age is like vital force.” There is no evidence in the record of relevant Vietnamese phrases, however, and in any event, there is no evidence of “demonstrable preparations” to use the Domain Names for the stated purposes. Rather, the Respondent has allowed the Domain Names to be used first for PPC advertising and then has redirected them to a competitor’s insurance site or to the Respondent’s own Twitter account. None of this indicates rights or legitimate interests in the Domain Names. Accordingly, the Panel concludes that the Complainant has established the second element of the Complaint. C. Registered and Used in Bad Faith The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following (in which “you” refers to the registrant of the domain name) which seem to be suggested by the Complainant’s arguments, although they are not explicitly cited: “(i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; 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.” The record shows that the Complainant has a well-known, coined, distinctive mark, highly advertised in Europe and Asia. It has been trademarked and advertised in Viet Nam since 2015 in connection with life insurance. The Respondent does not deny that it was aware of the Complainant, and that seems likely given the Complainant’s international and local reputation. Moreover, the Respondent’s October 4, 2019 email responding to the Complainant’s purchase inquiry two months after registering the Domain Name The Respondent’s conduct in allowing the Domain Names to be parked with PPC links for an extended time, then redirecting to a competitor’s site, is also consistent with bad faith as described in the Policy, paragraph 4(b)(iv) (misleading Internet users for commercial gain). As other UDRP decisions have noted, default parking by a registrar may be acceptable for some brief period without necessarily implicating bad faith, as a registrant prepares a redirect or at least a temporary website. But a registrant is ultimately responsible for the use of its domain names and can be held accountable for allowing others to continue exploiting the trademarks of others over time by using confusingly similar domain names for PPC advertising. In this case, the Respondent also ultimately redirected Internet users to a competitor’s site and then to the Respondent’s own Twitter account, which created further ambiguity as to possible affiliation with the Complainant. The Panel finds that these facts contribute to an inference that the Respondent acted in bad faith in the registration and use of the Domain Names. The Panel concludes that the Complainant has established the third element of the Complaint, 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 Domain Names, W. Scott Blackmer
Sole Panelist
Date: January 31, 2020
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