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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

ARAG Allgemeine Rechtsschutz-Versicherungs-AG v. Seung Nam Kim

Case No. D2006-1001

 

1. The Parties

The Complainant is ARAG Allgemeine Rechtsschutz-Versicherungs-AG, Dьsseldorf, Germany, represented by Cohausz Dawidowicz Hannig & Sozien, Germany.

The Respondent is Seung Nam Kim, Kyungbuk, Republic of Korea.

 

2. The Domain Name and Registrar

The disputed domain name <aragroup.com> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 7, 2006. On August 8, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On August 9, 2006, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 14, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was September 3, 2006. The Response was filed with the Center on August 28, 2006.

The Center appointed James A. Barker as the sole panelist in this matter on September 15, 2006. 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 in this administrative proceeding is ARAG Allgemeine Rechtsschutz-Versicherungs-AG. The Complainant is a company limited by shares and based in Dьsseldorf, Germany. It was founded in 1935. A subsidiary of the Complainant operates a website at “www.araggroup.com”.

The Complainant owns a number of trademarks registered in relation to the mark ARAG. In many cases, the registration consists of a device mark, consisting of two crossed swords, with “ARAG” overlaid, in the center of a circle. The mark is registered in a number of classes, including in relation to data processing, management consultancy, insurance and finance, and legal consultancy.

The disputed domain name has a creation date of October 5, 2003 (according to the registrar information.)

 

5. Parties’ Contentions

A. Complainant

The Complaint makes brief arguments, and the essential claims in paragraph 4(a) of the Policy. The Complainant alleges that the Respondent has engaged in ‘typo-squatting’, has no rights or legitimate interests, and has acted in bad faith for the purpose of paragraph 4(b)(iv) of the Policy.

The Complaint attaches some, but limited, evidence to support its claims. That evidence is principally copies of its trademark registrations. No evidence is provided of its corporate character or activities, other than the statements contained in the Complaint. The Complainant states that it “is one of the leading insurance firms”.

The Complaint attaches a copy of a website to which (the Complainant states) the disputed domain name referred. That website was headed “aragroup.com”, with a number of links in German. The listed links include those to “business”, “computer”, and “finanz” matters which might have some very broad association with the Complainant’s business. Other links are included: with titles such as “Einrichtung”(furnishings), “Geschenk” (gifts), and “fitness”.

For what period the disputed domain name referred to that site is not identified in the Complaint. The Complainant’s copy of that website is dated July 27, 2006. And so the Panel has inferred that the disputed domain name reverted to that site at least on that day.

B. Respondent

The Response is more brief. The Respondent asks (perhaps rhetorically) for proof that the Complainant has sole and exclusive rights to the disputed domain name. The Respondent points out that there are other registered domain names incorporating “aragroup”. He claims that the Complainant is not known in Korea, where the Respondent is based. The Respondent states that he is a “professional engineer in noise and vibration”. He registered the disputed domain name as an acronym for “Advanced Real Analysis Group”, with which he claims an association. The Respondent states that he also operates websites at “www.vibration.co.kr” and “www.noisevibration.com” in the same connection.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that, for the Complainant to succeed and have the disputed domain name transferred to it, the Complainant must establish that:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(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.

The Complainant must prove all of these three elements. These elements are discussed in turn as follows.

A. Identical or Confusingly Similar

The first element of the Policy has two limbs. One is that the Complainant “has rights” in a trademark or service mark. The Complainant has established that it has such rights in its registered ARAG mark, by providing copies of its trademark registrations.

The Respondent’s statements that the Complainant must establish exclusive rights against all the world in relation to “aragroup” are misplaced. The Complainant must only establish that it “has rights” for the purpose of the Policy, which it has done.

The second limb concerns whether the disputed domain name is identical or confusingly similar to the Complainant’s mark. The disputed domain name is not identical to the Complainant’s ARAG mark. So the question is whether it is confusingly similar to that mark.

It is well established that the “.com” extension is to be disregarded for the purpose of determining confusing similarity. Setting aside that extension, the disputed domain name differs from the Complainant’s mark by the addition of the addition of “roup” to “arag”. The effect, phonetically and visually, is that the disputed domain name reads, in English, as “ara group”. The word “group” is generic. It does little to distinguish the disputed domain name from the Complainant’s mark. If anything, the Panel’s view is that the addition of that word creates a stronger association with the mark. The word “group” might be associated with a professional association, of the kind which the Complainant operates through its business and subsidiaries.

Further, it appears at least coincidental that the disputed domain name is substantially identical to the Complainant’s domain name <araggroup.com> (registered to the Complainant’s subsidiary). This does not directly indicate confusing similarity with the Complainant’s mark. But it at least contributes to the confusing association of the disputed domain name with the Complainant and its business and therefore, creates indirect confusion with the Complainant’s mark.

Finally, the Complainant’s mark is incorporated entirely in the disputed domain name. Combined with the factors set out above, this more strongly indicates that the disputed domain name is confusingly similar to the mark.

For these reasons, the Complainant has established the first element of the Policy.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii) of the Policy the Complainant must establish that the Respondent has “no rights or legitimate interests” in the disputed domain name.

Burden of proof

The clear consensus of previous decisions under the Policy is that a Complainant establishes this element by making out a prima facie case against the Respondent. (See Overview of WIPO Panel Views on Selected UDRP Questions, item 2.1.) The Complainant has done this by indicating that the Respondent is not licensed or authorized by it to use its ARAG mark.

The burden then shifts to the Respondent to rebut that case.

The extent of the Response is some unsupported statements. Previous panels have consistently held that, once the complainant establishes a prima facie case, the burden shifts to the respondent to provide “concrete evidence” in response. (See for example, Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270; Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624.) “Concrete evidence” has been said to require more than personal assertions. (Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624). However, assertions are clearly a form of evidence. It is obvious to observe that assertions, in the form of written or oral testimony, routinely constitute evidence in domestic legal proceedings. The difference under the Policy is that such evidence is not subject to cross examination.

As with any evidence, the ultimate question is whether the Respondent’s case is comparatively credible. Concrete evidence for statements will usually provide that credibility.

Further, under the Policy, a respondent’s evidence must be credible on the balance of probabilities if the Respondent’s claims are to succeed. Panels have consistently applied such a “balance of probabilities” test in relation to burdens of proof under the Policy. (For relatively recent applications of this principle see, e.g. Whitstrand Investments Limited T/A DataDirection v. Direction Research Group Limited, WIPO Case No. D2005-0101; Deutsche Post AG v. NJDomains, WIPO Case No. D2006-0001). In accordance with paragraph 10(b) of the Rules – which requires the Panel to ensure equal treatment between the parties – the balance of probabilities test applies equally to the Respondent’s burden as to the Complainant’s.

Has the Respondent discharged that burden?

The question is then whether the Respondent has established that it has a right or legitimate interest in the domain name, on the test outlined above. The Respondent claims that it has. But the Panel finds that it has not, for the following reasons.

Firstly, the Respondent claims that the disputed domain name was registered by it legitimately. The Respondent’s claims that the disputed domain name is an acronym for “Advanced Real Analysis Group”. The Respondent claims that this group does “real analysis of structure having influences of vibration”. However, the Response otherwise provides no evidence of the existence of this Group, nor any real explanation of its activities. Real analysis is a branch of mathematics. The Respondent provides no explanation however of whether it is this aspect of “real analysis” that relates to its activities, or something else. In the absence of evidence to support its claims, and taking into account the other factors outlined below, the Respondent’s claims are not sufficiently credible.

Secondly, the Complainant has provided evidence that the Respondent’s website was used as a directory site. As at the date of this decision, the disputed domain name also reverted to a directory site. That site was different in detail to the copy of the site provided by the Complainant, but remained a directory site. This latest version of the website provides links to goods and services, listed in English as e.g. “credit cards”, “insurance”, “television” and “software”. The site also included the statement:

“Advanced Real Analysis Group

This site is under construction

You can find alignment and vibration & noise at vibration.co.kr”.

On balance, the character of the website appears to directly contradict the statements of the Respondent: that the domain name was registered “in compliance with my major field”. Despite the brief statements quoted above, the website appears primarily as a directory site, offering links to products and services that appear to have no relationship with “real analysis”. As such, the quoted statements on the Respondent’s website relating to “Advance Real Analysis Group” appear contrived.

Thirdly, the Respondent has not demonstrated any of the circumstances set out in paragraph 4(c) of the Policy which might demonstrate a legitimate interest. In particular, paragraph 4(c)(i) provides that a respondent may demonstrate a right or legitimate interest if it has made a bona fide offering of goods or services. Previous panels have found that the use of a domain name, incorporating a complainant’s mark, in connection with a directory or ‘portal’ site, is not relevantly bona fide. (See recently e.g. Humana Inc. v Cayman Trademark Trust, WIPO Case No. D2006-0073). The Respondent’s use in this case is essentially in connection with a ‘portal’ site. He provided no supporting evidence to the contrary.

Fourthly, it appears (although not addressed by the Complainant) that the Respondent has been a previous unsuccessful respondent in cases under the Policy (see, Longs Drug Stores California, Inc. v. Seung Nam Kim, WIPO Case No. D2005-0426; Mr. Adriano Celentano, Clan Celentano S.r.l. v. Mr. Seung Nam Kim and DomainFamily.com, WIPO Case No. Case No. D2006-0106). In both of those cases, no response was filed. However, this at least suggests that the Respondent is aware of the Policy, and understands the possible implications of registering a domain name in which another has trademark rights. It does not suggest that the Respondent is an innocent registrant, caught unawares by the proceedings against it.

For these reasons, the Panel finds that the Respondent’s assertions are not sufficiently credible. The evidence points in support of the contentions advanced by the Complainant, and there is comparatively little evidence to support the Respondent. The Complainant has therefore established this second element.

C. Registered and Used in Bad Faith

Paragraph 4(b)(iv) of the Policy provides (in part) that there is evidence of bad faith in circumstances where the Respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to a website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship or affiliation, or endorsement of the Respondent’s website.

For similar reasons to those set out above, the circumstances in paragraph 4(b)(iv) of the Policy are present in this case. The Respondent’s website, being a directory website, is apparently one that operates for some commercial gain. On the Complainant’s evidence, the Respondent’s website provided links (at one stage) in German, many of, which had some relationship with the services and goods offered by the Complainant. This evidence is suggestive that the Respondent was aware of the Complainant, and sought to profit by creating a confusing association between them.

The Respondent has also previously been involved in proceedings under the Policy. It is therefore a Respondent that is familiar with the Internet and the domain name system. As such, on the balance of probabilities, the Panel finds that the Respondent’s registration of a confusingly similar domain name was not done by accident.

The Complainant has proved this third element.

 

7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <aragroup.com>, be transferred to the Complainant.

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James A. Barker
Sole Panelist

Dated: September 29, 2006