Allianz SE v. Above.com Domain Privacy
Claim Number: FA1607001685293
Complainant is Allianz SE (“Complainant”), represented by John C. Cain of Fleckman & McGlynn, PLLC, Texas, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allinzlife.com>, registered with Above.com Pty Ltd.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 25, 2016; the Forum received payment on July 25, 2016.
On July 28, 2016, Above.com Pty Ltd. confirmed by e-mail to the Forum that the <allinzlife.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 28, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 17, 2016 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@allinzlife.com. Also on July 28, 2016, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 25, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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
Complainant has registered its ALLIANZ LIFE trademark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,723,753, registered June 10, 2003), and registered many variations of its ALLIANZ mark across the world for use with its insurance services. See Compl., at Attached Ex. D. Respondent’s domain name, <allinzlife.com>, is confusingly similar to the ALLIANZ LIFE mark, because it merely omits the second “a” and the space from the mark while only adding a generic top-level domain (“gTLD”) to the end.
Respondent has no rights or legitimate interest in the <allinzlife.com> domain name. Respondent is not commonly known by the disputed domain name. The resolving web page cannot be said to be a bona fide offering of goods and services, nor can it be said to be used for legitimate noncommercial or fair use because it includes only pay-per-click hyperlinks to the Complainant’s competitors. See Compl., at Attached Ex. E (hyperlinks include “Allianz Annuity,” “My Account,” and “Account Statement”—to name a few).
Respondent has committed bad faith registration and use of the disputed domain name. Respondent’s website is diverting Internet users to competitors which disrupts the Complainant’s business. Respondent also commercially gains from revenue for the click-through referral fees on the hosted links, and the links displayed on the resolving webpage create a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of its website in violation of Policy ¶ 4(b)(iv). Respondent also had actual knowledge of the Complainant’s marks due to their notoriety and deliberately typosquatted to create the <allinzlife.com> domain name which is in violation of Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the <allinzlife.com> domain name on November 15, 2009.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the respondent engaged in bad faith use and registration of the disputed domain name.
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."
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.
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(f), 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 (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.”).
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark. The Complainant has made an adequate showing that it has rights and interests in and to the registered trademark.
Respondent arrives at the disputed domain name by merely omitting the second “a” and the space from the mark while only adding a generic top-level domain (“gTLD”) to the end. This is insufficient to distinguish the disputed domain name from the Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Panel further finds that the Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent is apparently not commonly known by “Allinz Life” or the <allinzlife.com> domain name. The WHOIS information for the Respondent is “Above.com Domain Privacy.” The Panel finds that the WHOIS information and lack of evidence for Respondent is enough to find that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
As such, the Panel finds that the Respondent has no rights or legitimate interests in or to the disputed domain name.
Respondent also is not making a bona fide offering of goods and services, nor using the disputed domain name for a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and (iii). Complainant contends that Respondent’s domain name resolves to a website with hyperlinks to competing third party websites, from which Respondent presumably receives revenue from pay-per-click fees. See Compl., at Attached Ex. E. Such hyperlinks include, for example, “Allianz Annuity,” “My Account,” and “Account Statement.” Id. Panels have held that such generic hyperlinks to competitors does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name. See Provide Commerce, Inc. v. e on Craze, FA1506001626318 (Forum Aug. 11, 2015) (holding that the respondent was not making a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and 4(c)(iii) where the respondent was using the disputed domain name to host generic links to third-party websites, some of which directly competed with the complainant’s business).
Therefore, the Panel finds that Respondent has not established rights or a legitimate interest in <allinzlife.com> pursuant to Policy ¶¶ 4(c)(i) and (iii).
Complainant asserts that the disputed domain name was registered in bad faith for the primary purpose of disrupting its business in violation of Policy ¶ 4(b)(iii). Complainant argues that pay-per-click hyperlinks on the resolving website of the disputed domain name <allinzlife.com> diverts Internet users directly to Complainant’s competitors. See Compl., at Attached Ex. E. Panels have held that such competing hyperlinks are demonstrative of bad faith registration and use of a domain name in the past. See Independent Insurance Agents & Brokers of America, Inc. v. Liqian, FA1409001582252 (Forum Nov. 10, 2014) (concluding that because the complainant operated in the insurance business and the respondent was using the disputed domain name to display hyperlinks that ultimately promoted insurance companies and quote rates, the respondent was disrupting the complainants business and demonstrating bad faith registration and use of the domain name under Policy ¶ 4(b)(iii)).
As such, the Panel finds that Respondent is disrupting Complainant’s business pursuant to Policy ¶ 4(b)(iii).
Next, Complainant contends that Respondent is attempting to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s ALLIANZ LIFE mark. Complainant presumes that Respondent is receiving revenue from pay-per-click fees on hyperlinks listed on the resolving website of the disputed domain name. Further the Complainant contends that Respondent uses the ALLIANZ mark on the resolving website, and that the website creates confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name. See Compl., at Attached Ex. E. Where the disputed domain name is confusingly similar to the complainant’s mark, panels have held the respondent in bad faith registration and use in violation of Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
As such, the Panel finds that Respondent is in violation of Policy ¶ 4(b)(iv).
Complainant further argues that Respondent had actual or constructive knowledge of its ALLIANZ marks when in engaged in bad faith registration and use in violation of Policy ¶ 4(a)(iii). Complainant contends it advertised and that the ALLIANZ marks are well-known across the world. Complainant asserts the inference of actual notice is strengthened by the fact that Respondent’s resolving web page included hyperlinks that directly compete with Complainant’s business, and the addition of “life” to the ALLIANZ mark in the disputed domain name alludes that Respondent knew of Allianz Life Insurance products. See Compl., at Attached Ex. E. While panels do not consider constructive knowledge as applicable under the UDRP, panels have found actual notice when the Respondent has hosted such competing links on their website. See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation).
As such, given the totality of the circumstances, the Panel finds that Respondent proceeded in bad faith use and registration of the disputed domain name with actual knowledge of Complainant’s trademark rights in violation of Policy ¶ 4(a)(iii).
Lastly, it appears that Respondent is engaging in typosquatting. That is, the disputed domain name involves the common typographical mistake of omitting the second “a” in their ALLIANCE LIFE mark. As the Panel finds that this omission constitutes a typographical error that amounts to typosquatting, the Panel finds Respondent to have committed bad faith use and registration under Policy ¶ 4(a)(iii).
As such, the Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <allinzlife.com> domain name be transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: August 27, 2016
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