Allianz SE v. Avto VAZ
Claim Number: FA0907001275992
Complainant is Allianz
SE (“Complainant”), represented by Gretchen
McCord Hoffmann, of Wong, Cabello, Lutsch, Rutherford &
Brucculeri, L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <allianz-realestate.com>, registered with Godaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 28, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 10, 2009.
On August 10, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <allianz-realestate.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 10, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 31, 2009 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@allianz-realestate.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 2, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <allianz-realestate.com> domain name is confusingly similar to Complainant’s ALLIANZ mark.
2. Respondent does not have any rights or legitimate interests in the <allianz-realestate.com> domain name.
3. Respondent registered and used the <allianz-realestate.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allianz SE, is the owner of multiple registrations for its ALLIANZ mark with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 2,145,557 issued March 24, 1998) and other governmental trademark authorities in fifty-six countries. Complainant’s ALLIANZ mark is extensively advertised in conjunction with its offering of insurance, real estate, investment services, and asset management services for both private and institutional clients.
Respondent registered the <allianz-realestate.com> domain name on May 12, 2009. The disputed domain name resolves to a website featuring click-through advertisement links promoting businesses that compete with Complainant in the real estate industry. Some of the links visible at the website resolving from the disputed domain name include: “Real Estate Agent Sites,” “Century 21 Real Estate,” and “Bank Owned Real Estate.”
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant has submitted evidence of multiple registrations for its ALLIANZ mark with the USPTO (i.e., Reg. No. 2,145,557 issued March 24, 1998) and numerous other governmental trademark authorities in fifty-six countries. The Panel finds that these submissions sufficiently establish Complainant’s rights in the ALLIANZ mark for the purposes of Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Respondent’s disputed domain name incorporates Complainant’s
ALLIANZ mark in its entirety with the addition of a hyphen, the addition of the
phrase “real estate,” which is descriptive of Complainant’s business, and the
affixation of the generic top-level domain “.com.” The Panel finds that these alterations fail
to sufficiently negate a finding of confusingly similarity under Policy ¶ 4(a)(i). Therefore, the
Panel concludes that Respondent’s <allianz-realestate.com> domain
name is confusingly similar to Complainant’s ALLIANZ mark under Policy ¶ 4(a)(i). See Health Devices Corp. v.
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Because Complainant has set forth a prima facie case supporting its allegations, Respondent carries the burden to show that it does have rights or legitimate interests in the <allianz-realestate.com> domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). In this proceeding, Respondent has failed to respond to the allegations against it. Based on this failure, the Panel may presume that Respondent lacks rights and legitimate interests in the <allianz-realestate.com> domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). However, the Panel will examine the record to determine whether it reveals any rights or legitimate interests for Respondent with regards to the disputed domain name pursuant to Policy ¶ 4(c).
Respondent’s <allianz-realestate.com> domain
name resolves to a website featuring sponsored links that further resolve to
the websites of Complainant’s competitors in the real estate industry. Some of the links visible at the website
resolving from the disputed domain name include: “Real Estate Agent Sites,”
“Century 21 Real Estate,” and “Bank Owned Real Estate.” The Panel presumes that Respondent is
generating revenue from these sponsored links, and thus is not using the
disputed domain name in connection with a bona
fide offering of goods or services under Policy ¶ 4(c)(i)
or for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See
Persohn v. Lim, FA 874447 (Nat. Arb.
Forum Feb. 19, 2007) (finding that the respondent was not using a disputed
domain name in connection with a bona
fide offering of goods or services or a legitimate noncommercial or fair
use by redirecting Internet users to a commercial search engine website with
links to multiple websites that may be of interest to the complainant’s
customers and presumably earning “click-through fees” in the process); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an
identical or confusingly similar domain name to earn click-through fees via
sponsored links to a complainant’s competitors does not represent a bona fide offering of goods or services
under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶
4(c)(iii)).
Based on the evidence within the record, there is no indication that Respondent is commonly known by the <allianz-realestate.com> domain name. The WHOIS domain name registration information identifies the registrant of record as “Avto VAZ.” As such, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii) because it is not commonly known by the disputed domain name. See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s disputed domain name resolves to a website promoting
Complainant’s direct competitors in the real estate industry through sponsored
click-through links. Such an activity clearly disrupts Complainant’s
business, as Internet users seeking Complainant’s real estate services will be
redirected to Complainant’s competitors. This qualifies as bad faith
registration and use under Policy ¶ 4(b)(iii). See
David Hall Rare Coins v.
Complainant contends that Respondent is attempting to profit from its use of the disputed domain name based on the creation of a likelihood of confusion with Complainant’s ALLIANZ mark and the disputed domain name’s resolving website. The Panel presumes that Respondent is likely generating revenue from the sponsored links that appear on the disputed domain name and its resolving website. Thus, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv) by attempting to profit from the goodwill Complainant has established in the ALLIANZ mark. See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <allianz-realestate.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: September 16, 2009
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