The Complainant is Allianz SE, Germany, internally represented.
The Respondent is Domain Admin, Privacy Protect, LLC (PrivacyProtect.org) / Fernando Flores, Mexico.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 22, 2021. On June 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 23, 2021, 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 June 27, 2021, 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 June 28, 2021.
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 June 30, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 20, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 29, 2021.
The Center appointed Gareth Dickson as the sole panelist in this matter on September 17, 2021. 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 BackgroundThe Complainant is the ultimate parent company of the well-known Allianz insurance and financial services group. That group employs tens of thousands of employees around the world and serves tens of millions of customers.
The Complainant has been offering services under the ALLIANZ trade mark (the "Mark") for over 100 years and is the owner of a number of trade mark registrations for or incorporating the Mark around the world, including:
- German trade mark registration number 987481, registered on July 11, 1979; and
- European Union Trade Mark registration number 000013656, registered on July 22, 2002.
The disputed domain name was registered on March 14, 2021. It is being used by the Respondent to promote (or at least to give the appearance that it is promoting) financial services and investment opportunities, and to invite Internet users to submit personal details through the website, including their email address and their phone number.
5. Parties’ Contentions A. ComplainantThe Complainant argues that it has rights in the Mark by virtue of its ownership of various trade mark registrations for the Mark around the world and its longstanding use of the Mark for more than a century. Courts, Intellectual Property Offices, and other UDRP panels have all recognized the Complainant's ownership, and the strength, of the Mark. It contends that the disputed domain name is confusingly similar to the Mark since it incorporates the Mark (which is recognisable within the disputed domain name) with the addition of the descriptive term "marketing strategies", under the generic Top-Level Domain (“gTLD”) “.com”.
The Complainant suggests that the Respondent has been using the disputed domain name to perpetrate a fraud on Internet users, and submits that there is no evidence to suggest that the Respondent: has been commonly known by the disputed domain name; is making, or intends to make, a legitimate noncommercial or fair use of it; or has ever used or demonstrated preparations to use it in connection with a bona fide offering of goods or services.
The Complainant submits that the Respondent must have known of the Complainant and the Mark when it registered the disputed domain name, and therefore registered it, and is using it, in bad faith. The Mark, according to the Complainant, is well-known throughout the world and there is no rational explanation as to why the word "allianz" would have been chosen by the Respondent other than because it will be understood by Internet users seeking financial service and investment advice to be a reference to the Complainant or a member of its group of companies.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsUnder paragraph 4(a) of the Policy, the Complainant bears the burden of proving that:
a) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
b) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
c) the disputed domain name has been registered and is being used in bad faith.
These criteria are cumulative. The failure of the Complainant to prove any one of these elements means the Complaint must be denied.
A. Identical or Confusingly SimilarThe Panel accepts that the Complainant is the owner of, and therefore has rights in, the Mark.
Section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”) provides that: “[I]n 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 confusingly similar to that mark for purposes of UDRP standing.”
Section 1.8 of the WIPO Overview 3.0 further provides that: “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.”
The Panel therefore finds that the disputed domain name is confusingly similar to the Mark, since the disputed domain name incorporates the Mark in its entirety. The addition of the term “marketing strategies” in the disputed domain name does not prevent a finding of confusing similarity, nor does the addition of the gTLD “.com”.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trade mark in which the Complainant has rights.
B. Rights or Legitimate InterestsAlthough a complainant is required to demonstrate that a respondent has no rights or legitimate interests in respect of the domain name, as explained in section 2.1 of the WIPO Overview 3.0, the consensus view of previous UDRP panels is that where a complainant establishes a prima facie case that the respondent lacks rights or legitimate interests the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.
In the current proceeding, the Complainant has established its prima facie case. The selection of the word "allianz" as part of the disputed domain name has no conceivable explanation beyond the connection Internet users will make between that word and the Complainant, and the Respondent has not advanced any explanation to gainsay that conclusion. There is, before the Panel, no evidence that the Respondent has acquired any common law rights to use the Mark, is commonly known by the Mark or has chosen to use the Mark in the disputed domain name in any descriptive manner or is making any use of the disputed domain name that would establish rights or legitimate interests as a result of a noncommercial or fair use of it. Rather the confusingly similar disputed domain name creates a risk of implied affiliation, reinforced by the presence of the Complainant’s Mark and the offering of similar services to those of the Complainant on the website to which the disputed domain name resolves, which cannot constitute fair use nor confer rights or legitimate interests on the Respondent. See section 2.5.1 of the WIPO Overview 3.0.
As clearly stated in section 2.1 of the WIPO Overview 3.0, “a panel’s assessment will normally be made on the basis of the evidence presented in the complaint and any filed response. The panel may draw inferences from the absence of a response as it considers appropriate, but will weigh all available evidence irrespective of whether a response is filed”. Having reviewed and weighed the available evidence, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad FaithThe Panel notes that the disputed domain name was registered many years after the Mark was first used and first registered as a trade mark, and accepts that the disputed domain name was chosen by reference to the Mark.
As a result, and in the absence of evidence from the Respondent that the similarity of the disputed domain name to the Mark is coincidental or permitted, the Panel must conclude that the Respondent knew of the Complainant’s rights in the Mark when it registered the disputed domain name.
The Panel therefore finds that the Respondent’s registration of the disputed domain name was in bad faith since it attempted to appropriate for the Respondent, without the consent or authorisation of the Complainant, rights in the Complainant’s Mark.
The disputed domain name is also being used in bad faith, in that it is being used to imitate the Complainant in order to obtain email addresses and phone numbers from Internet users who believe they are about to be given financial services and investment advice from a member of the Complainant's group of companies. The Respondent's use of the disputed domain name therefore has all the hallmarks of a phishing site, as to which section 3.1.4 of the WIPO Overview 3.0 states: “[…] given that the use of a domain name for per se illegitimate activity such as the sale of counterfeit goods or phishing can never confer rights or legitimate interests on a respondent, such behavior is manifestly considered evidence of bad faith.”
The Respondent has not sought to explain its registration and use of the disputed domain name, has attempted to conceal its identity, and has not participated in these proceedings. There is also no conceivable use of the disputed domain name by the Respondent that would not be illegitimate and therefore there is no basis for the Panel to conclude that the Respondent’s use of the disputed domain name is justified.
Therefore, and on the basis of the information available to it, the Panel must, and does, find that the Respondent’s use of the disputed domain name is without justification and is inconsistent with the Complainant’s exclusive rights in the Mark. Consideration of these and other factors militates in favour of a finding of bad faith.
The Panel finds that the Respondent has registered and is using the disputed domain name in bad faith.
7. DecisionFor 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
Gareth Dickson
Sole Panelist
Date: October 5, 2021