Allianz SE v. Todd Hylton
Claim Number: FA0908001277634
Complainant is Allianz
SE (“Complainant”), represented by Gretchen
McCord Hoffmann of Wong, Cabello, Lutsch, Rutherford &
Brucculeri, L.L.P., Texas USA.
Respondent is Todd Hylton (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <allianzinsurance.com>, registered with Enom, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically August 4, 2009; the National Arbitration Forum received a hard copy of the Complaint August 5, 2009.
On August 5, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <allianzinsurance.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. verified that Respondent is bound by the Enom, Inc. registration agreement and thereby has 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 7, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 27, 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@allianzinsurance.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
OnSeptember 1, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <allianzinsurance.com>, is confusingly similar to Complainant’s ALLIANZ mark.
2. Respondent has no rights to or legitimate interests in the <allianzinsurance.com> domain name.
3. Respondent registered and used the <allianzinsurance.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allianz SE, offers a full line of insurance products and services, asset management, and banking services for both private and institutional consumers. Complainant is the owner of multiple registrations of the ALLIANZ mark, registered 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 worldwide.
Respondent registered the <allianzinsurance.com> domain name January 11, 2000. The disputed domain name redirects Internet users to Respondent’s website offering insurance quotes at the <superiorcarinsurance.com> domain name. At the website resolving from the redirected domain name, consumers are prompted to “get an instant quote today” by entering their zip code. Subsequently, Internet users are redirected to the websites of Complainant’s third-party competitors in the insurance industry.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 submitted evidence of its multiple registrations for the ALLIANZ mark with the USPTO (i.e., Reg. No. 2,145,557 issued March 24, 1998) and other governmental trademark authorities in fifty-six countries. The Panel finds that Complainant established rights in the ALLIANZ mark under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Respondent’s disputed domain name, <allianzinsurance.com>, incorporates Complainant’s ALLIANZ mark in its entirety with the only alterations being the addition of the descriptive term “insurance,” relating to Complainant’s business, and the affixation of the generic top-level domain “.com.” The Panel finds that these additions are insufficient to distinguish Respondent’s <allianzinsurance.com> domain name from Complainant’s ALLIANZ mark. Thus, the Panel finds that Respondent’s <allianzinsurance.com> domain name is confusingly similar to Complainant’s ALLIANZ mark pursuant to Policy ¶ 4(a)(i). See Wells Fargo & Co. v. Bogucki, FA 147305 (Nat. Arb. Forum Apr. 16, 2003) (finding that the <wellfargobank.com> domain name is confusingly similar to the WELLS FARGO mark, because altering the mark by one letter and adding “…the word ’bank,’ a word that both describes the type of business that Complainant engages in and is included in its <wellsfargobank.com> domain name, does not alleviate any confusing similarity.”); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶4(a)(i).
Complainant alleged that Respondent does not have any rights or legitimate interests in the <allianzinsurance.com> domain name. Once Complainant makes a prima facie showing to this effect, the burden of proof shifts to Respondent to prove that it does have rights to or legitimate interests under Policy ¶ 4(a)(ii). The Panel finds that Complainant made a sufficient prima facie case in this proceeding. Respondent’s failure to respond to the Complaint permit the Panel to make an inference that Respondent does not have rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). However, the Panel still examines the record to determine whether anything in the record would support findings that Respondent does have rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Respondent’s <allianzinsurance.com> domain name
redirects Internet users to Respondent’s commercial website at the
<superiorcarinsurance.com> domain name, offering insurance services that
are in direct competition with Complainant.
The Panel is permitted to presume that in such circumstances Respondent
is profiting through the diversion of Internet users seeking Complainant’s
insurance services to its own commercial website. The Panel finds that Respondent’s use of the
confusingly similar disputed domain name to redirect Internet users to its own
competing website does not constitute a bona
fide offering of goods or services under Policy ¶ 4(c)(i) or legitimate
noncommercial or fair use of the disputed domain names under Policy ¶
4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept.
30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking
Complainant’s website to a website of Respondent and for Respondent’s benefit
is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii).”); see also
DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is
not using the disputed domain name in connection with a bona fide offering of
goods and services because Respondent is using the domain name to divert
Internet users to <visual.com>, where services that compete with
Complainant are advertised.”).
Furthermore, the pertinent WHOIS information identifies the registrant of the disputed domain name as “Todd Hylton.” This information as well bears no similarity to the <allianzinsurance.com> domain name and no other evidence in the record suggests that Respondent is otherwise commonly known by the disputed domain name. Thus, the Panel finds that Respondent is not commonly known by the <allianzinsurance.com> domain name pursuant to Policy ¶ 4(c)(ii). See 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.”); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant alleges that Respondent’s <allianzinsurance.com> domain name redirects Internet users to Respondent’s commercial website at <superiorcarinsurance.com> domain name that offers insurance services competition with those of Complainant. It is likely that Internet users attempting to access Complainant’s website will be unknowingly redirected to Respondent’s commercial website and thus, Respondent’s use of the disputed domain name will result in a disruption to Complainant’s business. Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant).
Furthermore, Complainant contends that Respondent is generating revenue from the <allianzinsurance.com> domain name based on its commercial offering of competing insurance services. Such use supports findings that Respondent 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 TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where the respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of the complainant); see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent and the complainant were in the same line of business and the respondent was using a domain name confusingly similar to the complainant’s FITNESS WAREHOUSE mark to attract Internet users to its <efitnesswarehouse.com> domain name).
The Panel finds that Complainant satisfied the elements of ICANN 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 <allianzinsurance.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: September 15, 2009.
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