Allianz SE v. Asel Tynyshbekova / ATF Policy
Claim Number: FA1607001685296
Complainant is Allianz SE (“Complainant”), represented by John C. Cain of Fleckman & McGlynn, PLLC, Texas, USA. Respondent is Asel Tynyshbekova / ATF Policy (“Respondent”), Kazakhstan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allianz-life.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 25, 2016; the Forum received payment on July 25, 2016.
On July 26, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <allianz-life.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 27, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 16, 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@allianz-life.com. Also on July 27, 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 23, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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
Now operating under the name and mark ALLIANZ LIFE, Complainant, its predecessors, and its related entities market and sell insurance and insurance-related products and services, including life insurance.
Complainant holds a registration for the ALLIANZ LIFE service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) (Registry No. 2,723,753, registered June 10, 2003).
Respondent registered the domain name <allianz-life.com> on January 21, 2008.
The domain name is substantively identical, and therefore confusingly similar, to Complainant’s ALLIANZ LIFE mark.
Respondent has not been commonly known by the domain name.
Respondent is not in any way connected with Complainant, and has not been granted a license or other permission by Complainant to use Complainant’s ALLIANZ LIFE mark in any form.
Respondent fails to provide a bona fide offering of goods or services by means of the domain name or a legitimate noncommercial or fair use of it.
The website resolving from the domain name is inactive.
Respondent has no rights to or legitimate interests in the domain name.
Respondent knew of Complainant and its rights in the ALLIANZ LIFE mark when it registered the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is substantively identical, and therefore confusingly similar, to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out 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) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP 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.”
Complainant has rights in the ALLIANZ LIFE service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that a UDRP complainant had rights in the METROPCS mark through its registration of the mark with the USPTO).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Kazakhstan). See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum Aug. 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <allianz-life.com> domain name is substantively identical, and therefore confusingly similar, to Complainant’s ALLIANZ LIFE mark. The domain name contains the mark in its entirety, with the addition only of a hyphen and the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of identity or confusing similarity under the standards of the Policy. See, for example, Innomed Techs., Inc. v. DRP Servs., FA 221171 (Forum February 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy). See also Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Forum April 12, 2007) (finding that the addition of a hyphen between terms of the mark of another in creating a domain name did not differentiate the domain name from the mark under Policy ¶ 4(a)(i)).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in a disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <allianz-life.com> domain name, and that Respondent is not in any way connected with Complainant, and Respondent has not been granted a license or other permission by Complainant to use Complainant’s ALLIANZ LIFE mark in any form. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Asel Tynyshbekova,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the <allianz-life.com> domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that a respondent was not commonly known by the <chevron-europe.com> domain name, and so failed to show that it had rights to or legitimate interests in that domain name as provided in Policy ¶ 4(c)(ii), where the relevant WHOIS information identified the registrant of that domain name only as “Fred Wallace”).
We next observe that Complainant contends, without objection from Respondent, that Respondent fails to use the <allianz-life.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the website resolving from the domain name, which was registered January 21, 2008, is inactive. In the circumstances here obtaining, we conclude from all of this that Respondent has failed to make a bona fide offering of goods or services by means of the domain name as provided in Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of it as provided in Policy ¶ 4(c)(iii) so as to have obtained rights to or legitimate interests in it within the meaning of either of those portions of the Policy. See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005):
The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s apparent failure to make any active use of the <allianz-life.com> domain name in the more than eight (8) years since it was first registered demonstrates that it was registered and is being employed by Respondent in bad faith. See, for example, Disney Enters. Inc. v. Meyers, FA 697818 (Forum June 26, 2006) (finding that the non-use of a disputed domain name for several years constitutes evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the ALLIANZ LIFE mark when it registered the <allianz-life.com> domain name. This too stands as proof of Respondent’s bad faith in registering the domain name. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014):
The Panel … here finds [bad faith registration from respondent’s] actual knowledge through the name used for the domain and the use made of it.
For these reasons, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <allianz-life.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 30, 2016
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