Complainant is AXA SA of Paris, France, represented by Selarl Candé - Blanchard - Ducamp, France.
Respondent is Mr. Surridge of Margaret River, Australia, self-represented.
The disputed domain name <axadacca.com> (the “Domain Name”) is registered with Domain.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 28, 2016. On July 28, 2016, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. On the same date, the Registrar transmitted by e-mail to the Center its verification response confirming that 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” or “UDRP”), 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 2, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 22, 2016. The Response was filed with the Center on August 22, 2016.
The Center appointed Robert A. Badgley as the sole panelist in this matter on August 25, 2016. 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.
Complainant, through affiliate companies, has been a major property and casualty insurer around the world for several decades. Complainant has used the mark AXA to identify and distinguish its insurance services as far back as the 1980s. Complainant holds numerous registrations in numerous jurisdictions of the AXA mark. Complainant also operates websites accessible via various domain names incorporating the AXA mark, such as <axa.com> and <axa.fr>.
The Domain Name was registered on April 17, 2016. The Domain Name resolves to a parking page which features a number of hyperlinks, including links to websites of Complainant’s competitors.
In May 2016, Complainant and Respondent exchanged a handful of e-mails in which Complainant asked Respondent to cease use of the Domain Name and take steps to remove the pay-per-click commercial hyperlinks on the parking page. Respondent refused to do so, and claimed that the website he intended to develop would have nothing to do with AXA. No elaboration as to Respondent’s specific plans was provided during this e-mail exchange, and Respondent did not deny that the hyperlinks were pay-per-click links.
Complainant contends that it has satisfied all three elements required under the Policy for a transfer of the Domain Name.
In a brief and informal e-mail Response, Respondent stated in part as follows:
“This website was purchased with the intention of creating a fan website for [former
Guns ‘N Roses lead singer] Axl Rose role as lead singer for ACDC. Please note in Australia AC/DC is often spoken colloquially as Accadacca. [A citation to Wikipedia corroborates this assertion.] You will also find that I am the owner of axldacca.com and live in Australia.
This complaint is just some generalised bullying legal representation from a corporate who believes that as their company name is AXA (btw a belief that ownership of the first three letters would mean that only 19.683 corporates would control the interweb [sic]) any website that starts www.axa should not be permitted. My thoughts are www.axagogetreal.”
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name 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.
Complainant holds rights in the registered trademark AXA. The Domain Name incorporates this well-known and distinctive mark and adds the term “Dacca”. Dacca is one spelling of the capital of Bangladesh (Dhaka being another spelling). The Panel concludes that the addition of a geographically descriptive term to a distinctive mark which is used around the world does not reduce the confusing similarity between the mark and the Domain Name.
The Panel concludes that Complainant has established Policy, paragraph 4(a)(i).
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are 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.
Respondent’s explanation of his motivations, as laid out above, is not entirely fanciful, but it was offered only in response to the Complaint in this case. Respondent’s credibility suffers because he declined to explain his bona fides prior to the filing of the Complaint when he had a chance to do so. He was in direct communication with Complainant, and the purported Axl Rose-AC/DC fan site idea could have been offered at that time. Respondent’s credibility also suffers because AXA is a well-known mark and the rock star Respondent wanted to acclaim on his putative website spells his name “Axl”. Respondent, who registered the domain name <axldacca.com>, did not explain, either before or during this proceeding, why he would register the Domain Name, which would constitute a misspelling of Axl Rose’s name. Respondent has not provided evidence of demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services.
The Panel concludes on balance that Complainant has established Policy, paragraph 4(a)(ii).
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that 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) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
As noted above, there is a whiff of plausibility to Respondent’s account here. Again, though, Respondent’s credibility suffers from his refusal, prior to the filing of the Complaint in this case, to explain his motives to Complainant, including his reason for contemplating “axa” for “axl” in his plans. It also suffers from the fact that Respondent offered no evidence, either before the Complaint was lodged or since, of any actual preparations to put up a website devoted to “Axl Rose” and “AC/DC”.
Moreover, the Panel observes that Respondent never denied having knowledge of Complainant’s AXA mark. Further, the website to which the Domain Name resolves contains links to other insurance products and services, and Respondent does not deny that the commercial links on his website yield pay-per-click revenue.
Under these circumstances, and applying a balance of probabilities standard to this fairly threadbare record, the Panel finds it more likely than not that Respondent registered and is using the Domain Name in bad faith within the meaning of the above-quoted paragraph 4(b)(iv) of the Policy.
The Panel concludes that Complainant has established Policy, paragraph 4(a)(iii).
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <axadacca.com>, be transferred to Complainant.
Robert A. Badgley
Sole Panelist
Date: August 31, 2016