The Complainant is AXA SA of Paris, France, represented by Selarl Candé - Blanchard - Ducamp, France.
The Respondent is Ong Tran Van Minh of Ha Noi, Viet Nam.
The disputed domain name <axacoin.net> ("Disputed Domain Name") is registered with Mat Bao Trading & Service Company Limited d/b/a Mat Bao (the "Registrar").
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on April 6, 2017. On April 7, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 11, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On April 12, 2017, the Center transmitted an email in English and Vietnamese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on April 13, 2017. The Respondent did not comment on the language of the proceeding by the specified due date.
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 the Respondent of the Complaint in English and Vietnamese, and the proceeding commenced on April 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was May 10, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 11, 2017.
The Center appointed Pham Nghiem Xuan Bac as the sole panelist in this matter on May 16, 2017. 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.
The Complainant, AXA SA, is the holding company of the AXA Group, who has a strong‚ long-standing history and its roots go back to the 18th century. At present, the AXA Group in general, and the Complainant in particular, are famous for their numerous activities in three major lines of business: property and casualty insurance, life insurance and savings, and asset management, proposed both to individuals and to business companies. Employing 166 000 people worldwide, AXA is a world leader in insurance, savings and asset management, serving 107 million customers. The group is present in 64 countries and does business in diversified geographic regions and markets in particular across Europe, North America and Asia-Pacific.
The Complainant enjoys nowadays a worldwide reputation. The awareness of the Trademark "AXA" is widely known.
The Complainant is the owner of International Registration No. 490030 dated December 5, 1984 for AXA in Classes 35, 36 and 39, duly renewed and designating inter alia Algeria, Austria, Bosnia and Herzegovina, Croatia, Egypt, Spain, Germany, Hungary, Italia, Morocco, Monaco, Portugal, Democratic People's Republic of Korea, Romania, Russian Federation, Sudan, Ukraine, Viet Nam, Benelux and Switzerland; European Union trademark No. 373894 dated July 29, 1998 for AXA and design in Classes 35 and 36, duly renewed; European Union trademark No. 008772766 dated September 7, 2012 for AXA in Classes 35 and 36;French trademark No. 1270658 dated January 10, 1984 for AXA in Classes 35, 36 and 42, duly renewed; American trademark No. 2072157 dated June 17, 1997 for AXA in Class 36, duly renewed.
The Complainant is also the holder of the domain names <axa.com> registered on October 28, 2009, <axa.net> registered on January 14, 2011, <axa.info> registered on July 30, 2001, <axa.fr> registered on May 20, 1996.
The Disputed Domain Name was registered on February 27, 2017. The Disputed Domain Name previously resolved to a website imitating the Complainant's official website and currently resolves to an inactive website.
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are satisfied in the present case, as follows:
(i) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant argues that the Disputed Domain Name reproduces entirely the trademark AXA, which itself has no particular meaning and is therefore highly distinctive. Further, AXA is a well-known trademark as stated in AXA SA v. Frank Van, WIPO Case No. D2014-0863 regarding the domain name <axacorporatetrust.com>, "the Complainant has established its rights in the well-known AXA trademark, duly registered in several countries around the world".
In addition, the word "coin" is a descriptive term of the Complainant's financial activities and thus is not enough to escape a finding of confusing similarity. Actually, adding words that are related to the Complainant's services is likely to increase the risk of confusion amongst the Internet consumers.
Therefore, the Disputed Domain Name is confusingly similar to the trademarks in which the Complainant has rights.
(ii) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.
The Complainant contends that the Complainant has never licensed or otherwise permitted the Respondent to use its trademarks or to register any domain name including the above-mentioned trademarks. Hence, there is no relationship whatsoever between the Parties involved.
Further, the Respondent has not been commonly known by the Disputed Domain Name or even associated with the name "axa", whereas the AXA trademark appears to be well-known.
In addition, the Respondent is not making a fair use of the Disputed Domain Name, without intent for commercial gain and is misleadingly diverting consumers. The evidence shows that the Respondent is engaged in a scheme to divert the Complainant's customers to his website. The "www.axcoin.net" website is a copy of the Complainant's official corporate website "www.axa.com". The Respondent is using its website in such a manner that it appears to be an official site of the Complainant. In this manner personal data of Internet users may be captured by the Respondent in a phishing or other reprehensible scheme. Clearly, such an activity is not connected to a bona fide offering, and clearly is illegitimate.
Under these circumstances, the Respondent has no rights or legitimate interest in respect of the Disputed Domain Name <axacoin.net>.
(iii) The Disputed Domain Name was registered and is being used in bad faith.
Obviously, the Respondent was aware of the Complainant's AXA trademarks at the time that he acquired the Disputed Domain Name.
The Complainant has submitted ample evidence to support its claim that the trademark AXA has become internationally famous and enjoys worldwide good reputation. The website at the Disputed Domain Name is a copy of the Complainant's official corporate website.
The Respondent registered, on February 27, 2017 the Disputed Domain Name along with others domain names such as <mtvip1.com> or <mtvip2.com> which also infringe the trademark's rights of third parties. The Respondent is used to registering domain names that infringe the well-known trademark's rights of third parties, as it is shown by Aktiebolaget Electrolux v. Ong Tran Van Minh, WIPO Case No. D2014-1086 regarding the domain name <dienmayelectrolux.com>.
This behavior demonstrates that the Respondent does not need the Disputed Domain Name but that it chose and registered <axacoin.net> in bad faith in order to take predatory advantage of the Complainant's reputation.
It will be reminded that the Respondent is engaged in a phishing scheme to divert the Complainant's customers to its website. The Respondent tries to attract Internet users to its website by proposing a fake website similar to the Complainant's one. Phishing attacks constitute proof of both bad faith registration and use.
These factors establish that the Respondent registered and is using the Disputed Domain Name <axacoin.net> in bad faith.
The Respondent did not reply to the Complainant's contentions.
The Complaint was filed in English on April 6, 2017. On April 11, 2017, the Registrar informed that the language of the Registration Agreement is Vietnamese, and the Center invited the Complainant to submit either (i) satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceeding should be in English, or (ii) a translation of the Complaint in Vietnamese, or (iii) a substantiated request for English to be the language of the proceeding; and invited the Respondent to comment on the language of the proceeding.
On April 13, 2017, the Complainant sent the Center an email stating that they did submit a request for English to be the language of the proceeding in the Complaint. The Respondent did not give any comments on this issue.
According to paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
Similar to previous UDRP decisions, the Panel finds that the spirit of paragraph 11(a) is to ensure fairness in the selection of language by giving full consideration to the parties' level of comfortability with each language, the expenses to be incurred and possibility of delay in the proceeding in the event translations are required and other relevant factors (see, e.g., Deutsche Messe AG v. Kim Hyungho, WIPO Case No. D2003-0679).
In the present case, in consideration of the above circumstances of the proceeding, including, but not limited to:
(i) the nationality of the Parties;
(ii) the fact that the Complainant, a French business entity, does not appear to be able to communicate in Vietnamese, and therefore, if the Complainant was required to have the documents translated into Vietnamese, the proceeding would be unduly delayed, and the Complainant would have to incur substantial expenses for translation;
(iii) the content of the website under the Disputed Domain Name is in English; the Respondent has registered several domain names with registration agreements only in English; and the Respondent was subject to a UDRP proceeding, of which the decision issued in English;
(iv) the English language is quite popular in Viet Nam, where the Respondent is located, making it likely to be understandable to the Respondent;
For the purpose of easy comprehension of the Complainant (the only party actively taking part in the proceeding) of the Panel's decision without any necessity of translations, and in the interest of fairness to both Parties as well as the Panel's obligation under paragraph 10(c) of the Rules, which provides that "the Panel shall ensure that the administrative proceeding takes place with due expedition", the Panel hereby decides, under paragraph 11(a) of the Rules, that the language of the proceeding shall be English and shall render its decision in English.
The Respondent's Failure to Respond
The Respondent's failure to file a Response does not automatically result in a decision in favor of the Complainant (see, e.g., Tradewind Media, LLC d/b/a Intopic Media v. Jayson Hahn, WIPO Case No. D2010-1413 and M. Corentin Benoit Thiercelin v. CyberDeal, Inc., WIPO Case No. D2010-0941). However, the Panel may draw appropriate inferences from the Respondent's default.
In accordance with paragraph 4(a) of the Policy, in order to decide on the remedy sought by the Complainant, the Panel will examine whether each of the following three elements are present:
(i) the Disputed Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used in bad faith.
The Complainant is required to establish the two following elements: (1) that it has trademark rights, and, if so, (2) that the Disputed Domain Name is identical or confusingly similar to its trademark.
First of all, the Panel finds that the Complainant has clearly evidenced that it has registered trademark rights to AXA. Also, the Complainant has sufficiently demonstrated and evidenced that it had a lengthy use of its trademark for its commercial activities, and in particular to the service of insurance, savings and asset management.
Second, the Panel finds that the Disputed Domain Name comprises the Complainant's AXA mark in its entirety. The difference between the Disputed Domain Name and the trademark is the addition of the word "coin" right after the term "axa". "Coin" is a term descriptive of and commonly used in the Complainant's financial industry. As such, the Panel finds that "axa" remains the dominant element in the Disputed Domain Name. It is well established that the addition of a descriptive term (such as "coin") to a trademark does not prevent confusing similarity, thus, in the Panel's view, the addition of the said term does nothing to distinguish the Disputed Domain Name from the trademark, nor to dispel the confusing similarity, as it was found in previous UDRP decisions (see, e.g., AB Electrolux v. Ilgaz Fatih Micik, WIPO Case No. D2009-0777; Aktiebolaget Electrolux v. ibp, WIPO Case No. D2013-0795; AB Electrolux v. Ong Bui Trung Kien, WIPO Case No. D2012-2320).
Third, the Panel finds, similarly to other UDRP panels, that the addition of the generic Top-Level Domain ("gTLD") ".net" to the Disputed Domain Name does not constitute an element so as to avoid confusing similarity (see, e.g., Volkswagen AG v. Privacy Protection Services, WIPO Case No. D2012-2066; The Coca-Cola Company v. David Jurkiewicz, WIPO Case No. DME2010-0008).
On the basis of the foregoing findings, and according to paragraph 4(a)(i) of the Policy, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant's AXA trademark, and the first element under paragraph 4(a) of the Policy is established.
Paragraph 4(c) of the Policy states that a respondent can show that it has a right or legitimate interest in a disputed domain name in the following circumstances:
(i) before any notice to the respondent of the dispute, the respondent's 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) the respondent (as 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) 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.
The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The Respondent did not reply to the Complainant's contentions and, therefore, has not refuted the Complainant's prima facie case.
Regarding paragraph 4(c)(i) of the Policy, the Panel finds, in light of the Complainant's asserted facts, that no license, permission or authorization of any kind to use the Complainant's trademark has been granted to the Respondent. There is no evidence available that the Respondent holds any registered or unregistered trademark rights in any country in the world. Thus, the Panel finds that the Respondent has no rights or legitimate interests in the trademark AXA.
Further, the Complainant has submitted relevant evidence showing that before any notice to the Respondent of the dispute, the Disputed Domain Name resolved to a website almost identical with the official website of the Complainant at "www.axa.com". In this regard, the Panel finds that in the home page of the website under the Disputed Domain Name, the Respondent placed a statement that "Axacoin created by AXA is one of the first group insurance and asset management around the world […]". This is evidently an attempt by the Respondent to create a false association or connection with the Complainant. Further, through its own search, the Panel finds some advertisements of the "AXA coin", which refer to the said statement and the Disputed Domain Name, in several forums, such as "www.bitcointalk.org". As such, the Panel finds that the conduct by the Respondent amounts to an act of "phishing" and "spoofing" for the purpose of attracting Internet users to its website by using a domain name comprising the Complainant's well-known trademark and proposing a fake website almost identical to the Complainant's website, possibly for identity theft and other nefarious activities. The use of the Disputed Domain Name in such a manner cannot be considered a bona fide offering of goods or services.
Moreover, the Panel finds no evidence that would suggest that the Respondent, as an individual, business, or other organization, has been commonly known by the Disputed Domain Name.
The Panel further finds that no evidence has been presented that the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name. In fact, as it appears following the Complainant's assertions and evidence with regard to the Respondent's registration of the Disputed Domain Name and the appearance of the website resolved to by the Disputed Domain Name, the Respondent had full knowledge of the Complainant's trademarks and had an intention to gain profit by engaging in a phishing scheme to divert the Complainant's customers to this website.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name, and the second element under paragraph 4(a)(ii) of the Policy is established.
Paragraph 4(b) of the Policy lists four circumstances that, without limitation, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name 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 that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(ii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iii) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.
The above four circumstances are not exhaustive and bad faith may be found by the Panel alternatively.
The Panel finds that the Complainant has put forth evidence that the Respondent has registered and used the Disputed Domain Name in bad faith. The Respondent did not reply to the Complainant's contentions and, therefore, has not refuted the Complainant's contentions.
The Panel has considered the Complainant's assertions and evidence with regard to the Respondent's registration of the Disputed Domain Name. In this regard, the Panel finds that the Complainant's AXA trademark has been registered in a variety of jurisdictions around the world. In addition, the Complainant's AXA trademark has been put in use over a lengthy period of time and gained reputation in the industry of insurance, savings and asset management. The Complainant's trademark and trade name AXA and its domain name <axa.com> all well predate the registration of the Disputed Domain Name.
The Disputed Domain Name comprises the AXA trademark in its entirety, adding only the descriptive word "coin". Further, the word "AXA" is not descriptive of anything and devoid of meaning other than the services of the Complainant.
These facts show that the Respondent did not register the Disputed Domain Name in a fortuity. The Respondent obviously knew of the Complainant and its AXA trademark and trade name before the registration of the Disputed Domain Name, and the Panel considers the registration an attempt by the Respondent as to take advantage of the Complainant's goodwill.
The Panel finds that as of the date of this decision, the Disputed Domain Name resolves to an inactive webpage. As such, the Panel considers the use of the Disputed Domain Name at the time before this dispute was informed to the Respondent. Since the Respondent did not submit any arguments against the contention of the Complainant, the Complainant has made a prima facie case that the Responding was using the Disputed Domain Name in bad faith.
In Section 6.B. above, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name. In the Panel's view, use of a domain name, to which one has no rights or legitimate interests, is very often a clear indication of use in bad faith.
As discussed earlier, the Panel finds that the Respondent has intentionally attempted to attract Internet users to its website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its website, possibly for illicit purposes. Numerous UDRP panels have held that a respondent who intentionally diverts Internet users through a likelihood of confusion with a complainant's mark to its website constitutes bad faith.
In addition, the Respondent is engaging in a phishing scheme by using a domain name comprising the Complainant's well-known trademark and proposing a fake website almost identical to the Complainant's website. In this regard, the Panel shares the same view with other panels in previous cases that the "phishing" is "practices which have become a serious problem in the financial services industry worldwide" and "forms of Internet fraud that aim to steal valuable information such as credit cards, social security numbers, user Ids, passwords etc." (see Grupo Financiero Inbursa, S.A. de C.V. v. inbuirsa, WIPO Case No. D2006-0614). "Phishing" is a convincing evidence of the bad faith use of the Disputed Domain Name.
Therefore, taking into account all of the above, the Panel finds that the Disputed Domain Name was registered and used by the Respondent in bad faith under paragraph 4(b)(iv) of the Policy, and the third element under paragraph 4(a) of the Policy is established.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name <axacoin.net> be transferred to the Complainant.
Pham Nghiem Xuan Bac
Sole Panelist
Date: May 30, 2017