WIPO Arbitration and Mediation CenterADMINISTRATIVE PANEL DECISIONAllianz SE v. Yi QinCase No. D2008-15021. The PartiesThe Complainant is Allianz SE of Munich, Germany, represented internally. The Respondent is Yi Qin of Pleasanton, United States of America (“United States” or “USA”). 2. The Domain Name and RegistrarThe disputed domain name <allianzusa.com> is registered with GoDaddy.com, Inc. 3. Procedural HistoryThe Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 2, 2008. On October 3, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On October 3, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 October 14, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 3, 2008. The Respondent filed two email messages with the Center that shall be regarded as the Response on October 23, 2008 and October 26, 2008. The Center appointed William A. Van Caenegem as the sole panelist in this matter on November 7, 2008. 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 registered owner of International, EU Community and German trade marks ALLIANZ, and ALLIANZ and design. Additionally it is the registered owner of the United States trade marks ALLIANZ, ALLIANZ OF AMERICA, USALLIANZ ADVANTAGE, USALLIANZ SECURITIES, USALLIANZ OPPORTUNITY, and USALLIANZ INVESTOR SERVICES and designs. The disputed domain name was registered by the Respondent on December 15, 2002. 5. Parties’ ContentionsA. ComplainantThe Complainant or its predecessors in title have operated under the ALLIANZ trade mark on a continuous basis for many years in relation to insurance, health care and financial services products. The Complainant asserts that it has devoted extensive resources to building up goodwill in its ALLIANZ mark and in distinguishing it from all other products in the same classes. The Complainant asserts that it has operated internationally from its inception and owns exclusive rights around the world in the ALLIANZ mark, directly or through affiliates. In the United States several specialized financial services companies operate under the Allianz name, e.g. Allianz Life. It has achieved substantial penetration in the life insurance market in the United States and manages very substantial assets. The Complainant also owns a number of registered domain names, inter alia <allianz.com> and <allianzus.com>. The Complainant asserts that the disputed domain name is confusingly similar to the Complainant’s mark ALLIANZ. The addition of the term “usa” is insufficient to differentiate it, especially since the Complainant operates worldwide, including in the United States – the USA, and its trade mark remains the dominant element. The Complainant asserts that additionally the Respondent’s website contains links to insurance and finance related websites, including those of competitors of the Complainant, and allows searches to be conducted concerning predefined categories of insurance, such as “Autoversicherung” and “Ihre Krankenversicherung”. Therefore a significant part of the services offered by the Respondent corresponds to those for which the Complainant has registered the ALLIANZ trade mark. As to rights and legitimate interests, the Complainant asserts that following the registration of the disputed domain name, the Respondent has used the website to which the disputed domain name resolves as an insurance portal. Nonetheless, the Complainant asserts that the Respondent holds no trade mark registrations for “Allianz” and has no consent, license or authorization from the Complainant. Also none of the Respondent’s activities correspond to any of the circumstances of paragraph 4(c) of the Policy. The website to which the disputed domain name resolves shows that the Respondent specifically chose it to further his own business interests, exploiting typos Internet users make when they seek access to the Complainant’s site. The Respondent is trading on the fame of the Complainant. The Complainant’s mark is highly distinctive and enjoys a very high level of awareness amongst the general population, as confirmed by German court and OHIM decisions which the Complainant cites. The Complainant has obtained orders in its favor in relation to the domains <e-allianz.net> (Munich District Court) and <allianzfinance.com> (Policy). Use which intentionally trades on the fame of another’s mark cannot be a bona fide offering of goods and services, otherwise a respondent could rely on intentional infringement to demonstrate a legitimate interest, contrary to the Policy’s intent. The Complainant asserts that the Respondent is not commonly known by the disputed domain name, something the Complainant’s prior rights would bar him from anyway. The Respondent also makes no legitimate non commercial or fair use of the disputed domain name; the use is purely commercial, earning payment for sponsored links, without offering any goods or services. As to bad faith, the Complainant asserts the Respondent could not have been ignorant of its trade mark at the time of registration due to its fame. This is further underscored by the use of German insurance related terms in the weblinks and the offering of insurance and finance related links on the website. Further the sponsored links indicate, according to the Complainant, that the Respondent receives click through payments from third parties. Earning such commissions for the diversion of Internet users is a common example of bad faith use as referred to in paragraph 4(b)(iv) of the Policy and recognized in previous panel decisions. B. RespondentThe Respondent sent two emails which he confirmed were his final and complete Response to the Complaint and which are treated as such by the Panel. The emails are relatively brief and no supporting documentation or further evidence is attached. The Respondent contends that he incorporated Allianz Technologies in Nevada, USA and then acquired the disputed domain name through Godaddy.com, Inc. The company was created as a technology – and not a financial services – company, and the disputed domain name was intended to be used in association with it, but “the website has never been constructed for various reasons”. The Respondent further asserts that he only parked his domain name with Godaddy.com, Inc. in response to a free offer. He asserts Godaddy.com, Inc., placed all the “ads”, which include insurance related ones, on the website without his input or approval. He asserts the Complaint should be directed at Godaddy.com, Inc., apologizes for what happened and says it was not his intention or conduct. The Respondent further asserts that <allianzus.com>, one of the domain names listed by the Complainant in the Complaint as belonging to it, was registered after the disputed domain name. For that reason, using <allianzus.com> as an example there was allegedly misleading. 6. Discussion and FindingsA. Identical or Confusingly SimilarThe disputed domain name is not identical to any of the Complainant’s marks. Therefore the question is whether the disputed domain name is confusingly similar. The disputed domain name wholly incorporates the Complainant’s mark ALLIANZ, with the addition of “usa”. The common geographical signifier “USA” is not sufficient to differentiate the disputed domain name from the Complainant’s ALLIANZ trade mark. The Complainant has worldwide operations under that trade mark, inter alia in the USA, where it also owns a number of trade marks with the first word ‘USALLIANZ’. ALLIANZ is a highly distinctive trade mark. The disputed domain name is confusingly similar because it generates the impression of a connection with the Complainant’s operations or establishments in the United States. No such connection in fact exists. The term ALLIANZUSA has no inherent or distinctive significance. Therefore the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trade mark ALLIANZ. B. Rights or Legitimate InterestsThe Respondent in his Response refers to the incorporation of ‘Allianz Technologies’ in Nevada, USA, and his intention to use the disputed domain name in respect of that company, but simultaneously admits that he never did use the disputed domain name for any such purpose. Instead he asserts that the domain name was parked in response to a free offer from the registrar Godaddy.com, Inc. Then Godaddy.com, Inc. put “all the ads” on his website without his approval or input. The Respondent maintains that therefore the Complaint should be addressed to Godaddy.com, Inc. The Respondent is the owner of the disputed domain name. He is thus the person responsible for the content of the website to which the disputed domain name resolves. He admits he entered into a parking arrangement with the registrar. The Complainant’s web printouts show links substantially concerned with insurance on the website to which the disputed domain name resolves. That was also the case when the Panel accessed the website on November 17, 2008. It is apparent that this choice of links has not come about by coincidence; rather they were selected because of their connection with the Complainant’s business. The Respondent put no evidence before the Panel that he has sought to have the links on his website removed or amended when notified of the Complaint or otherwise. Nor was there any evidence provided concerning the incorporation or existence of a company by the Respondent called “Allianz Technologies”, and clearly the website does not refer to any such company. In the circumstances the Panel is not persuaded that the particular form of the disputed domain name was not chosen and acquired by the Respondent for the exact purpose for which it is being used, i.e. to misdirect Internet users intending to access the Complainant’s website to competing insurance related websites for the sake of earning click-through revenue. Acquiring a domain name incorporating a well-known and distinctive trade mark and then using it to misdirect Internet users to websites offering competing products and services, with the apparent intention of earning click-through revenue, does not by itself give rise to a legitimate interest. There is no evidence of any offering of goods or services, nor does the Respondent provide any evidence that he is commonly known by the relevant name, nor did he provide any evidence that he is making a legitimate non commercial or fair use. Therefore the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad FaithThe Panel accepts that the Complainant’s trade mark ALLIANZ is distinctive and has a strong reputation in many jurisdictions in relation to insurance and financial services, including in the United States. That reputation was already well established when the disputed domain name was acquired. Given also the fact that the disputed domain name carefully combines Complainant’s trade mark with “usa”, the Panel is persuaded that the Respondent must have had full knowledge of the Complainant’s trade mark and reputation at the time of registration. The Panel therefore accepts that the disputed domain name was registered in bad faith. Nothing the Respondent says in his brief Response detracts from that conclusion. The website to which the disputed domain name resolves has at various times consisted of a list of sponsored links mostly concerned with insurance, the Complainant’s core business. The use of a domain name incorporating a distinctive trade mark for the purpose of misdirecting Internet users searching for the trade mark owner’s website and services can not be considered to be a use in good faith. It takes unfair advantage of the close similarity with the Complainant’s marks to lead consumers interested in the Complainant’s goods and services to the websites of competitors. Therefore the Panel finds that the disputed domain name was registered and is being used in bad faith. 7. DecisionFor 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 <allianzusa.com> be transferred to the Complainant.
William A. Van Caenegem Dated: November 24, 2008
: https://internet-law.ru/intlaw/udrp/2008/d2008-1502.html
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