The Complainant is AXA SA, France, represented by Selarl Candé - Blanchard - Ducamp, France.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Varan Batuhan, Turkey. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 30, 2020. On July 30, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 30, 2020, 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. The Center sent an email communication to the Complainant on August 3, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on August 3, 2020. The Center verified that the Complaint together with the amendment to 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 August 5, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 25, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 26, 2020. The Center appointed Kaya Köklü as the sole panelist in this matter on September 3, 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 French company that is particularly specialized in property and casualty insurance as well as in life insurance and savings. The Complainant’s group of companies is active globally with 160,000 employees serving more than 100 million customers worldwide. The Complainant is the owner of the trademark AXA, which is registered in a large number of jurisdictions, including in Turkey, where the Respondent is apparently located. The Complainant’s first trademark registrations date back to the 1980s (by way of illustration: International Trademark No. 490030, registered on December 5, 1984, see Annex 9 to the Complaint). In Turkey, the Complainant is alsothe owner of the Turkish Trademark Registration AXA SIGORTA No. 2008/34213 (registered on July 6, 2009, see Annex 15 to the Complaint). Both referred trademark registrations provide protection for various insurance and finance services. Furthermore, the Complainant holds and operates various domain names incorporating the AXA trademark, including The Respondent seems to be an individual residing in Turkey. The disputed domain name was registered on September 28, 2019. As evidenced in Annex 20 to the Complaint, the disputed domain name resolves to a third-party website with explicit adult content. 5. Parties’ Contentions A. Complainant The Complainant requests the transfer of the disputed domain name. The Complainant is of the opinion that the disputed domain name is confusingly similar to its AXA and AXA SIGORTA trademarks. Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is rather argued that the nature of disputed domain name falsely suggests that there is some official or authorized link between the Complainant and the Respondent. Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent was well aware of the Complainant’s AXA and AXA SIGORTA trademarks, when registering the disputed domain name. Additionally, it is argued that the Respondent’s way of using the disputed domain name constitutes “pornosquatting”, which misleads users and has the potential to tarnish the reputation of the Complainant’s AXA and AXA SIGORTA trademarks. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark 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. Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complainant’s contentions. Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228. However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See, section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the consensus views captured therein. A. Identical or Confusingly Similar The Panel finds that the Complainant has registered trademark rights in the mark AXA by virtue of various trademark registrations, including trademark registrations covering protection in Turkey (e.g. AXA SIGORTA), where the Respondent appears to be located. The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s registered AXA and AXA SIGORTA trademarks, as it fully incorporates the Complainant’s trademarks. As stated at section 1.8 of the WIPO Overview 3.0, where the relevant trademark is recognizable within the disputed domain name, the addition of other terms would generally not prevent a finding of confusing similarity. The mere addition of the Turkish city name “Malatya” does, in view of the Panel, not serve to avoid a finding of confusing similarity between the disputed domain name and the Complainant’s AXA and AXA SIGORTA trademark. Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name. While the burden of proof on this element remains with the Complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. See, Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c). In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s trademarks AXA and AXA SIGORTA in a confusingly similar way within the disputed domain name. There is also no indication in the current record that the Respondent is commonly known by the disputed domain name. In the absence of a response, the Respondent has particularly failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c), or other evidence of rights or legitimate interests in the disputed domain name. The Panel is convinced that the Respondent deliberately chose the disputed domain name in order to target Internet users who are searching for the services provided by the Complainant at its official Turkish website. In view of the Panel, there is a considerable risk that these Internet users may end up on the website of the Respondent with explicit adult content. The Panel believes that this cannot be sufficient basis for assessing a bona fide offering of goods or services by the Respondent. As a conclusion, the Panel finds that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel is convinced that the Respondent must have had the Complainant’s trademark in mind when registering the disputed domain name. In view of the Panel, the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant. After having reviewed the Complainant’s screenshots of the third-party website linked to the disputed domain name (see Annex 20 to the Complaint), the Panel is convinced that the Respondent has intentionally registered the disputed domain name in order to generate traffic to its own website with adult content. Such conduct is known as “pornosquatting”, the practice whereby confusion with a famous trademark is used to divert Internet users to an adult content website for commercial purposes. See Prada S.A. v. Roberto Baggio,WIPO Case No. D2009-1187. Noting that the Respondent lacks any rights or legitimate interests in the disputed domain name, the use of the disputed domain name incorporating the Complainant’s trademarks and misleading Internet users to a website with explicit adult content for commercial gain, is in view of the Panel sufficient evidence of bad faith registration and use under paragraph 4(b)(iv) of the Policy. The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, 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 Kaya Köklü
Sole Panelist
Date: September 16, 2020
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