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Allianz AG v. Michele Dinoia [2005] GENDND 787 (12 May 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Allianz AG v. Michele Dinoia

Case No. D2005-0277

1. The Parties

The Complainant is Allianz AG, München, Germany, represented by Judith Grassi, Germany.

The Respondent is Michele Dinoia, Pineto, Italy.

2. The Domain Name and Registrar

The disputed domain name <alianz.com> is registered with OnlineNic, Inc. d/b/a China-Channel.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 18, 2005. On March 18, 2005, the Center transmitted by email to OnlineNic, Inc. d/b/a China-Channel.com a request for registrar verification in connection with the domain name at issue. On March 21, 2005, OnlineNic, Inc. d/b/a China-Channel.com 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 March 29, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was April 18, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 19, 2005.

The Center appointed Ladislav Jakl as the sole panelist in this matter on April 28, 2005. 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 Complaint asserted, and provided evidence in support of, and the Panel finds established, the following facts.

The Complainant Allianz AG is one of the oldest and largest international insurance and financial services firms. Under the ALLIANZ mark, the Complaint offers a wide range of insurance, underwriting, reinsurance and financial services.

The Complaint is particularly based on the trademarks owned by Complainant, which include the word “Allianz”, as follows:

- internationally registered trademarks ALLIANZ Reg. No.: R 447 004, 714 618, 713 841,

- ALLIANZ and ALLIANZ and Design, EU Community Trademarks Nos.: 000013656 and 002981298,

- ALLIANZ, Germany trademarks No.: 987481, 399 27 827 and

- ALLIANZ and Design, Italy trademark No.: 745 485.

The copies of the corresponding trademark registrations, including comprehensive list of services, all of which include insurance and financial affairs, were attached to the Complaint as Annex C.

In addition, the Complainant contends, that in the name of AGIS Allianz Dresdner Informationssysteme GmbH, the German IT-affiliate company of Allianz AG, are registered the following domain names directly linked to the website “www.allianz.de”: <allianz.de>, <allianz.com>, <allianzgroup.com>, <alllianz.de>, <alianz.de>, <allians.de>, <allainz.de>.

The Respondent registered the disputed domain name <alianz.com> with the Registrar OnlineNic, Inc. d/b/a China-Channel.com.

5. Parties’ Contentions

A. Complainant

Complainant essentially contends that the disputed domain name <alianz.com> of the Respondent is confusingly similar to Complainant's registered trademarks including the word “Allianz” and that this domain name incorporates a common misspelling of the ALLIANZ mark. The only difference being the lack of the letter “l”. The pronunciation of these two words is identical. In addition, Complainant states, that the Respondent’s website allows Internet users to carry out searchers by predefined categories, including such categories as “Finances” and “Insurance”. Therefore, a significant part of the services offered by the Respondent corresponds to insurance and financial affairs, the categories of goods and services for which the Complainant has filed the ALLIANZ marks.

Further, the Complainant contends that the Respondent has no rights or legitimate interests in respect of the domain name at issue. In Complainant’s opinion, the Respondent’s activities do not correspond to any of the circumstances set forth in the Policy, Paragraph 4(c), that would evidence any rights or legitimate interests with respect to the disputed domain name and the Respondent has no right to make any use of the domain name, as he has never received a license or any other form of authorization or consent from the Complainant to make use of the ALLIANZ mark. Moreover, the Respondent did not use the domain name in connection with a bona fide offering of goods or services and started using it as a portal site for insurance resources, posing as “The top INSURANCE resources on the net”. On the basis of attached printouts, the Complainant contends, that Respondent specifically chose the disputed domain name in order to further his own business activities, that he is exploiting the typographical errors made by Internet users who are hoping to access the Complainant’s website and is thus attracting these users to his website by trading on the fame of the Complainant’s mark.

The Complainant contends that the disputed domain name was registered in bad faith and is being used in bad faith within the meaning of Paragraph 4(b)(iv) of the Policy. The Complainant contends that the Respondent intentionally attempted, by using the disputed domain name, to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the disputed domain name. In addition, the Complainant contends that the ALLIANZ marks are very well-known, especially with regards to insurance and financial affairs and therefore it cannot be reasonably argued that the Respondent could have been unaware of the trademarks when registering the disputed domain name.

In accordance with Paragraph 4(i) of the Policy, the Complainant requests the Panel to issue a decision that the disputed domain name be transferred to the Complainant.

B. Respondent

The Respondent did not file a response to the Complaint.

6. Discussion and Findings

Paragraph 4(a) of the Policy requires that the Complainant 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 the Respondent is identical or confusingly similar to a trademark in which the Complainant has rights; and

ii) the 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.

A. Identical or Confusingly Similar

The Complainant has filed a list of its eight trademarks and copies of their registrations. The Panel finds that five of them consist only of the word “allianz” and that all of which at least include insurance and financial affairs in class 36 (“ALLIANZtrademarks”).

The Respondent has registered the domain name <alianz.com>.

As to confusing similarity, the only difference, apart from the “.com”, which does not form part of the similarity equation, between the disputed domain name and the Complaint’s ALLIANZ trademarks, is in the lack of one letter “l”. There is no doubt that Respondent’s domain name is confusingly similar, because the lack of the letter “l” does not change the overall impression of the designation.

Therefore, the Panel finds that the requirement of Paragraph 4(a)(i) of the Policy is satisfied.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out a number of circumstances, without limitation, which may be effective for a Respondent to demonstrate that it has rights to, or legitimate interests in, the disputed domain name, for the purpose of Paragraph 4(a)(ii) of the Policy:

(i) before any notice to the Respondent of the dispute, use by the Respondent of, or demonstrable 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; or

(ii) where the Respondent (an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or

(iii) where the Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

According to Paragraph 15(a) of the Rules a Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, Rules and any rules and principles of law that it deems applicable.

According to Paragraph 5(e) of the Rules, if a respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint.

Having received no response from the Respondent within the fixed period of time from the Notification of Complaint, the Panel notes that the Respondent has not provided evidence of circumstances of the type specified in Paragraph 4(c) of the Policy, or of any other circumstance giving rise to a right to or legitimate interests in the domain name.

Based on the record, the Panel concludes that the Respondent has no rights to or legitimate interests in the domain name <alianz.com>.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration or use of a domain name in bad faith:

(i) circumstances indicating that domain name has been registered or acquired by Respondent primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent documented out-of-pocket costs directly related to the domain name; or

(ii) the Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) the Respondent by using the domain name has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant's mark as the source, sponsorship, affiliation, or endorsement of Respondent's website or location of a product or service on its website or location.

Complainant argues that the Respondent intentionally, by using the disputed domain name attracts for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation or endorsement of the disputed domain name.

On the basis of evaluation of above arguments, the Panel finds that Respondent is intentionally diverting users to its websites by exploiting the confusing similarity between the disputed domain name and Complainant’s ALLIANZ trademarks. Further, the Panel finds that the Respondent is engaging in this conduct in order to reap commercial gain.

Therefore the Panel determines that the Respondent has acted in bad faith within the meaning of Paragraph 4(b) of the Policy.

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 <alianz.com> be transferred to the Complainant.

Ladislav Jakl
Sole Panelist

Dated: May 12, 2005