Allianz of America Corporation v. Lane Bond
Claim Number: FA0604000680624
PARTIES
Complainant is Allianz of America Corporation (“Complainant”), represented by Rita A. O'Keeffe, of Leonard, Street and Deinard, P.A., 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402. Respondent is Lane Bond (“Respondent”), 2605 Ann Drive, Big Spring, TX 79720.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allianzfinance.biz>,
registered with Gandi Sarl.
PANEL
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.
Dr. Reinhard Schanda as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on April 13, 2006; the National Arbitration Forum received a
hard copy of the Complaint on April 17, 2006.
On April 15, 2006, Gandi Sarl confirmed by e-mail to the National
Arbitration Forum that the <allianzfinance.biz>
domain name is registered with Gandi Sarl and that the Respondent is the
current registrant of the name. Gandi
Sarl has verified that Respondent is bound by the Gandi Sarl 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 April 26, 2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of May 16, 2006 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@allianzfinance.biz by e-mail.
A timely Response was received and determined to be complete on May 10,
2006.
On May 19, 2006, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Dr. Reinhard Schanda as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’
CONTENTIONS
Allianz AG is one of the oldest and largest international insurance and
financial services firms in the world.
It was founded in Berlin in 1890.
Since its inception in 1890, Allianz AG has continuously operated under
the ALLIANZ name, and has used the ALLIANZ mark in connection with its
products. Its current uninterrupted
international operations date from 1959.
Complainant, Allianz of America Corporation, is a wholly-owned
subsidiary of Allianz AG. Complainant
is also the licensee of the Allianz AG marks for North America. The ALLINAZ mark was first registered in the
United States in 1998. Over the years, Allianz AG has devoted substantial
resources and efforts building goodwill in the ALLIANZ mark, and the ALLIANZ
mark is used to distinguish Allianz’s products from all other products in the
same class.
Complainant is the licensee for North America of Allianz AG of the
ALLIANZ trademark, as further described in the following United States
registrations:
A. ALLIANZ Reg. No. 2,145,557 for use in connection with life insurance agencies and a full line of insurance services and financial services.
B. ALLIANZ OF AMERICA Reg. No. 2,326,950 for use in connection with life insurance agencies and a full line of insurance services and financial services.
C. ALLIANZ Reg. No. 2,256,628 for use in connection with life insurance agencies and a full line of insurance services and financial services.
D. ALLIANZ GROUP Reg. No. 2,462,437 for use in connection with life insurance agencies and a full line of insurance services and financial services.
E. ALLIANZ Reg. No. 2,391,129 for use in connection with life insurance agencies and a full line of insurance services and financial services.
F. ALLIANZ Reg. No. 2,392,939 for use in connection with life insurance agencies and a full line of insurance services and financial services.
H. ALLIANZ – THE POWER BESIDE YOU Reg. No. 2,391,233 for use in connection with life insurance agencies and a full line of insurance services and financial services.
I. ALLIANZ LIFE Reg. No. 2,723,753 for use in connection with life insurance agencies and a full line of insurance services and financial services.
Respondent operates a website at the <allianzfinance.biz> domain name. Neither Respondent, nor its website, have any relationship with Allianz. In fact, Respondent’s website is a part of a scheme aimed at defrauding Internet users by gaining access to Internet users’ personal financial information and part of an international money laundering operation.
Complainant contends that the domain name at issue includes the ALLIANZ trademark combined with a generic word. Furthermore, the generic word “finance” is descriptive of Complainant and the type of services it offers.
Complainant contends that domain names which include a trademark combined with a generic word have consistently been found confusingly similar to the trademark. Respondent’s domain name is therefore confusingly similar to Complainant’s registered trademark.
Complainant further contends that Respondent has no rights or legitimate interest with respect to the ALLIANZ mark, or the goodwill Allianz has developed in its mark. Allianz is the exclusive owner of all such rights and interest. As such, Respondent has no rights or legitimate interests in the domain name <allianzfinance.biz>. To the contrary, Respondent holds no trademark registrations for any ALLIANZ mark, and has not obtained from Allianz a license or permission to use any ALLIANZ mark.
Furthermore,
Respondent is not commonly known by the ALLIANZ name. As such, Respondent has no rights or legitimate interests in the
disputed domain name pursuant to Policy ¶
4(a)(ii).
Furthermore, there is no evidence that
demonstrates Respondent is using ALLIANZ in connection with a bona fide
offering of goods or services or is making a legitimate noncommercial, or fair
use of the disputed domain name.
Respondent’s sole purpose in operating its website is to use the ALLIANZ
trademark to misleadingly divert internet traffic to its websites in
furtherance of its scheme to defraud internet users and carry on its money
laundering operations. For all the
above reasons, Respondent has no legitimate right or interest in the disputed
domain name.
According to Complainant, the disputed domain name should be considered as having been registered and used by Respondent in bad faith because Respondent attracts Internet users to its website, for commercial gain, by creating a likelihood of confusion with Complainant’s ALLIANZ trademark as to the source, sponsorship, or affiliation of Respondent’s website. The similarity of Respondent’s domain name to Complainant’s ALLIANZ mark is evidence that consumers searching for Complainant’s website on the Internet could end up at Respondent’s website.
Registration of an infringing domain name despite actual knowledge of
its trademark status is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii). In this instance, the ALLIANZ marks
are famous world-wide, representing Complainant’s insurance and financial
services since 1890. Thus, it should be
presumed that Respondent acted in bad faith because it must have been aware of
the ALLIANZ mark when it obtained the domain name.
As
a result of Complainant’s considerable efforts and resources, Complainant has
built up extensive goodwill in its trademark, and the public has come to
recognize the ALLIANZ mark as signifying a source of origin of Complainant’s
insurance and financial products.
Respondent’s domain name creates confusion, misleads internet consumers
and damages Complainant. According to
Complainant, Respondent’s activities violate both ICANN Policy and the Lanham
Act, tarnish Complainant’s mark and harm Complainant’s business.
Respondent has submitted the following response:
“I am Lane Bond, I live at 2605 Ann Drive in Big Spring,
Texas. As of this morning (May 4,
2006), a check of the ICAAN Whois shows me as the registrant for the domain
name of <allianzfinance.biz>.
The first time I heard about
gandi.net was when I received my Citicards statement in October 2005. A charge of $57.94 plus a charge of $1.73
for a foreign currency exchange had been made against me on 10-16-2005, paid to
gandi.net. Having never heard of them, and not having done any internet
registration on that date, I notified Citicards about the charge. They immediately shut down the account,
reversed the charge, and sent me a new card with a new account number. Investigation online confirmed that
gandi.net is an approved Registrar for ICAAN.
I heard
nothing else from this until I received the current complaint, which is when I
had my first knowledge of the existence of Allianz of America. So, it seems
that there has been a theft of a domain name by someone posing as me, using my
credit card to pay for the transaction, and my identity to register the name.
The Complainant has a legitimate complaint, apparently, but not against me. I will be happy to cooperate in any way I can to restore their rightful property to them. Facts not available to me might show this to be in serious error. I trust the Arbitrator has access to all of the facts necessary to determine this.”
The Panel finds that:
1.
the domain name
<allianzfinance.biz> is confusingly similar to
Complainant’s registered trademarks.
2.
Respondent has
not established any right or legitimate interest in the domain name and
3.
Respondent has
registered and is using the domain name in bad faith.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark
or service mark in which the Complainant has rights;
(2)
the 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.
The Panel is of the view that
Complainant’s valid trademark registrations with the USPTO (Reg. No. 2,145,557 issued March 24, 1998;
Reg. No. 2,256,628 issued June 29, 1999; Reg. No. 2,391,129 issued October 3,
2000; Reg. No. 2,392,939 issued October 10, 2000) demonstrate its rights in the
ALLIANZ mark pursuant to Policy ¶ 4(a)(i).
See Vivendi Universal Games v. XBNetVentures Inc.,
FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark
registrations establish Complainant's rights in the BLIZZARD mark.”); see
also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration
of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”).
Complainant further asserts that
Respondent’s <allianzfinance.biz> domain name is confusingly
similar to its ALLIANZ mark, because it wholly incorporates Complainant’s
registered mark and merely adds the term “finance,” which describes Complainant’s
financial services business, as well as the generic top-level domain (“gTLD”)
“.biz.” The Panel finds that such
additions to Complainant’s mark do not sufficiently distinguish Respondent’s
<allianzfinance.biz> domain name from the mark under Policy ¶
4(a)(i). See Space Imaging LLC v.
Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing
similarity where the respondent’s domain name combines the complainant’s mark
with a generic term that has an obvious relationship to the complainant’s
business); see also Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18,
2000) (finding the <westfieldshopping.com> domain name confusingly
similar because the WESTFIELD mark was the dominant element); see also
Isleworth Land Co. v. Lost in Space, FA 117330 (Nat. Arb. Forum Sept. 27,
2002) ( “[I]t is a well established principle that generic top-level domains
are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
Complainant must show that Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent does not assume the burden of proof, but may establish a right or legitimate interest in a disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy:
(a) He has made preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services prior to the dispute;
(b) He is commonly known by the domain name, even if he has not acquired any trademark rights; or
(c) He intends to make a legitimate, non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.
The Panel determines that Complainant has discharged the onus of proof for the second criterion: Respondent has failed to demonstrate any legitimate right or interest.
According to the majority of Panel decisions, this Panel also takes the position that while Complainant has the burden of proof on this issue, once Complainant has made a prima facie showing, the burden of production shifts to Respondent to show by providing concrete evidence that it has rights to or legitimate interests in the domain name at issue. See Document Technologies, Inc. v. International Electronic Communications, Inc., D2000-0270 (WIPO June 6, 2000); see also Inter-Continental Hotel Corporation v. Khaled Ali Soussi, D2000-0252 WIPO July 5, 2000); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the Complainant has asserted that the Respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the Respondent”); see also 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.”).
The Panel is of the view that Respondent is not commonly known by the <allianzfinance.biz>, domain name, because the WHOIS information
lists “Lane Bond” as the registrant of the disputed domain name, and there is
no other evidence in the record suggesting that Respondent is commonly known by
the disputed domain name. Furthermore
Complainant has not authorized or licensed Respondent to register or use a
domain name incorporating Complainant’s ALLIANZ mark of any variation. The Panel is therefore of the view that
Respondent is not commonly known by the disputed domain name and finds that
Respondent does not have rights or legitimate interests in the domain name
pursuant to Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA
96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests
because the respondent is not commonly known by the disputed domain name or
using the domain name in connection with a legitimate or fair use); see also
Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information
for the disputed domain [name], one can infer that Respondent, Onlyne Corporate
Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”).
Moreover, Complainant argues that Respondent is using the <allianzfinance.biz> domain name to engage in a fraudulent phishing scheme. Complainant claims that Respondent’s domain name resolves to a website offering Internet users a job as a payment processing manager and prompting Internet users to enter their personal information, including bank account numbers. Complainant alleges that Respondent is defrauding Internet users in order to carry out an international money laundering scheme. The Panel finds that diverting Internet users to a third-party website in order to fraudulently acquire their personal information does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“‘Phishing’ involves the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit cards, passwords, social security numbers and other personal information to the ‘phishers’ who intend to use such information for fraudulent purposes.”); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) and (iii)).
Complainant alleges that Respondent has registered and is using the <allianzfinance.biz> domain name in bad faith pursuant to Policy ¶ 4(a)(iii), because the domain name resolves to a website prompting Internet users to enter their personal information, including bank account numbers, in an alleged international money laundering scheme aimed at defrauding Internet users. The Panel concludes that Respondent is engaged in phishing and that attempting to fraudulently acquire personal information from Internet users seeking Complainant’s products and services constitutes bad faith registration and use in violation of Policy ¶ 4(a)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“The domain name <billing-juno.com> was registered and used in bad faith by using the name for fraudulent purposes.”); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients).
In addition, the Panel finds that Respondent’s diversion of Internet users seeking Complainant’s products to its own website for commercial gain constitutes bad faith registration and use under Policy ¶ 4(b)(iv), because Respondent likely profits from redirecting consumers to its own website and is, therefore, taking advantage of the confusing similarly between Complainant’s ALLIANZ mark and the <allianzfinance.biz> domain name. See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
Respondent asserts that it did
not register the disputed domain name and that someone else registered the <allianzfinance.biz>
domain name on Respondent’s behalf without its permission. Previous panels have held that a complainant
has a duty of candor to reveal all relevant facts to the panel, even if they
undermine its position, and the same duty applies to a respondent. The Panel believes that Respondent is making
false allegations that it did not register the disputed domain name, and finds
that Respondent submitted a Response in bad faith. Cf. G.A. Modefine S.A. v. A.R. Mani, D2001-0537 (WIPO July
20, 2001) (finding that the complainant, by omitting several relevant facts
that would have undermined its position, had brought the complaint in bad
faith, which constituted an abuse of the administrative proceeding); cf.
also Innovative Measurement Solutions Inc. v. Hart Info Sys. D2001-0552
(WIPO June 18, 2001) (find that the complainant’s knowledge of documentary
evidence disproving the complainant’s allegations ignored in the complaint
constituted an abuse of the administrative proceeding).
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <allianzfinance.biz>
domain name be TRANSFERRED from Respondent to Complainant.
Dr. Reinhard Schanda,
Panelist
Dated: June 2, 2006
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