Allianz SE v. RAKSHITA MERCANTILE PRIVATE LIMITED
Claim Number: FA0908001277743
Complainant is Allianz SE (“Complainant”), represented by Gretchen
McCord Hoffman, of Wong Cabello, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <allianzcarinsurance.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 4, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 5, 2009.
On August 13, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <allianzcarinsurance.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com 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 19, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 8, 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@allianzcarinsurance.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 11, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 <allianzcarinsurance.com> domain name is confusingly similar to Complainant’s ALLIANZ mark.
2. Respondent does not have any rights or legitimate interests in the <allianzcarinsurance.com> domain name.
3. Respondent registered and used the <allianzcarinsurance.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allianz SE, offers insurance and related
products and services under the ALLIANZ mark and variations thereof. Complainant and its predecessors have
operated since 1890, and since 1906 in the
Respondent registered the <allianzcarinsurance.com> domain name on January 29, 2007. The disputed domain name resolves to a website that displays click-through links to Complainant’s direct 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."
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 provided evidence of its registrations of
the ALLIANZ mark with the USPTO (e.g. Reg. No. 2,391,129 issued October 3,
2000). The Panel finds that this evidence
adequately confers upon Complainant sufficient rights in the mark for the
purposes of Policy ¶ 4(a)(i). See Morgan Stanley v. Fitz-James (CT2341-RSC)
Cititrust Group Ltd., FA 571918 (Nat. Arb. Forum Nov. 29, 2005)
(“The Panel finds from a preponderance of the evidence that Complainant has
registered its mark with national trademark authorities. The Panel has determined that such
registrations present a prima facie
case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”); see also
Respondent’s <allianzcarinsurance.com>
domain name contains Complainant’s entire ALLIANZ mark while adding both the
descriptive words “car insurance,” and the generic top-level domain (“gTLD”)
“.com.” The Panel finds that the
addition of a gTLD is irrelevant in a Policy ¶ 4(a)(i)
analysis. See Trip Network Inc. v. Alviera, FA 914943
(Nat. Arb. Forum Mar. 27, 2007)
(concluding that the addition of a gTLD, whether it be “.com,” “.net,” “.biz,”
or “.org,” is irrelevant to a Policy ¶ 4(a)(i) analysis). Moreover,
the words “car insurance” could be fairly declared descriptive of Complainant’s
insurance offerings. When generic words that describes the complainant’s business are
added to the disputed domain name, panels are consistent in holding that
confusing similarity is not diminished. See Miller Brewing
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights or legitimate interests in the disputed domain name. When Complainant sets forth a prima facie case supporting its allegations as it has in the current case, the burden shifts to Respondent to prove that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also 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”).
Because Respondent has failed to tender a response to the Complaint, the Panel has no evidence before it that indicates Respondent is or ever was commonly known by the disputed domain name. The Panel notes that the WHOIS information lists Respondent as “RAKSHITA MERCANTILE PRIVATE LIMITED.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Complainant alleges that Respondent’s disputed domain name
resolves to a website that displays advertisements promoting third-party
competitors of Complainant and their goods and services. The Panel presumes that Respondent obtains
referral fees when Internet users follow these links to the competitive
websites. The Panel agrees with previous
panels that have held that such a practice does not constitute 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). 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 Summit Group, LLC v.
LSO, Ltd., FA 758981 (Nat.
Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the
complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s
own website for commercial gain does not constitute either a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use
pursuant to Policy ¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name, which was registered on January 29, 2007, resolves to a website that hosts sponsored links for Complainant’s direct competitors. The Panel finds that this practice likely disrupts Complainant’s business for Respondent’s commercial gain through the recipt of referral fees, which constitutes 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 Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
The Panel also finds that Respondent has created a
likelihood of confusion for commercial gain as to Complainant’s endorsement and
sponsorship of the disputed domain name and corresponding website. The Panel finds that this constitutes bad
faith registration and use under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum
June 7, 2006) (holding that the registration and use of a domain name
confusingly similar to a complainant’s mark to direct Internet traffic to a
commercial “links page” in order to profit from click-through fees or other
revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Williams-Sonoma,
Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of
a confusingly similar domain name to display links to various third-party
websites demonstrated bad faith registration and use pursuant to Policy ¶
4(b)(iv)).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <allianzcarinsurance.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: September 22, 2009
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