WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Ing. Mag. Hans Schneider v. ALLRisk Management GmbH

Case No. DBIZ2002-00001

Complainant is ING. MAG HANS SCHNEIDER, a one-man business, having his place of residence at Karlsplatz 1, A-101- Vienna, Austria and represented by René Pitayataratorn ("the Complainant").

The Respondent is ALLRISK MANAGEMENT GmbH, a company organised under the laws of Germany, having its principal place of business at Waldstrasse 71, Karlsruhe, D-76133, Germany ("the Respondent").

The domain name at issue is <allfinanz.biz>.

The Registrar is Schlund & Partner, having its principal place of business at Erbprinzenstrasse 1, Karlsruhe, D-76133, Germany ("The Registrar").

The Complaint was submitted for decision in accordance with the Start-up Trademark Opposition Policy for .BIZ ("STOP") adopted by NeuLevel Inc. and approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") on May 11, 2001, the Rules for Start-up Trademark Opposition Policy (the "STOP Rules") and the WIPO Supplemental Rules for Start-up Trademark Opposition Policy for .BIZ (the "WIPO Supplemental STOP Rules").

The Complaint was received by the WIPO Arbitration and Mediation Center (the "Center") on January 4, 2002. On January 8, 2002, the Center sent an Acknowledgement of Receipt of Complaint to Complainant.

On January 11, 2002, the Center sent a Notification of the STOP Complaint and Commencement of Administrative Proceedings to the Respondent, setting a deadline of February 26, 2002, by which Respondent could make a Response to the Complaint.

On March 14, 2002, the Center sent a Notice of Default to Respondent.

On April 5, 2002, the Center sent a Notification of Appointment of Administrative Panel and Projected Decision Date by email to parties, in which Wolter Wefers Bettink was appointed as Sole Panelist.

Complainant has filed an intellectual property claim ("IP Claim") pursuant to the instructions and the format provided by NeuLevel.

On November 19, 2001, Respondent registered the domain name <allfinanz.biz>.

After this registration, NeuLevel notified Complainant that Respondent had registered the domain name <allfinanz.biz> and informed Complainant that it was entitled to commence a STOP proceeding against Respondent. On January 4, 2001, Complainant filed a STOP Complaint pursuant to the Start-up Trademark Opposition Policy.

The trademark ALLFINANZ has been used by Complainant since 1974, and has been registered in accordance with the Austrian Trademark Act ("Markenschutzgesetz") under number 128926 since February 1990. The term of this registration has been renewed and now runs until January 31, 2010. Complainant offers a wide spectrum of financial services via the trademark ALLFINANZ.

The domain name <allfinanz.biz> is a one-to-one equivalent of Complainant’s trademark.

Respondent has no rights or legitimate interests in the domain name <allfinanz.biz>. According to Complainant, Respondent is not the owner or beneficiary of a trade or service mark that is identical to the domain name in question. Furthermore, Respondent has never been commonly known by "Allfinanz" or "Allfinanz.biz".

The domain name has been registered in bad faith. Respondent, in a telephone call to Complainant’s Registrar, offered to buy Complainant’s IP-claim to the domain name <allfinanz.biz> when the domain name itself could not yet be registered. By making this offer, Respondent in effect, provides evidence that the domain name <allfinanz.biz> was registered or acquired primarily for the purpose of selling the domain name registration to Complainant or a competitor of Complainant, for valuable consideration in excess of Respondent’s out-of-pocket costs directly related to the domain name.

Respondent is a competitor of Complainant. As such, Complainant states that Respondent has registered the domain name primarily for the purpose of disrupting a competitor’s business, as customers could inadvertently surf to Respondent’s website when searching for Complainant’s website. Respondent, by using the domain name <allfinanz.biz>, intentionally attempts to attract for commercial gain, internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of Respondent’s website or location or of a product or service on the Respondent’s website or location.

As Respondent has not submitted a Response to the Center, Complainant’s contentions are uncontested.

Where, as in this case, a Respondent does not submit a Response and the file does not contain any communication from Respondent, the rules of due process require the Panel to verify, to the extent possible, that Respondent is aware of the present proceedings. The Panel is satisfied, on the basis of the file documents, that this is the case.

A hard copy of the Complaint was sent by the Center to Respondent’s address as mentioned under 1. above, by courier and by email. The Center has discharged its responsibility under Paragraph 4(a) of the STOP Rules to notify Respondent of the Complaint.

Under the STOP, a Complaint can only be filed by an "IP claimant" who had filed an IP claim for a particular alpha-numeric string. If that string becomes registered as a ".biz" domain name, NeuLevel notifies the IP claimant and invites it to initiate a STOP proceeding within 20 days. The Panel has been informed by the Center that this period has been extended to 25 days. NeuLevel determines priority if there are multiple claimants on a random basis (STOP Paragraph 4(2)(ii)). Only the priority claimant will be invited to initiate a STOP Complaint, it is allocated a ticket number, which allows dispute resolution providers to verify whether a STOP Complaint is filed by the priority Claimant. The service provider (in this case the Center) is required to advise the Panelist if a disputed domain name is subject to more than one claim. In the present case, no such advice has been given to the Panelist.

Under STOP, the Complainant must show:

(a)that the domain name is identical to the Complainant’s trademark or service mark (Paragraph 4a(i));

(b)that the Respondent has no rights or legitimate interests in the domain name (Paragraph 4a(ii));

(c)that the domain name was either registered or used in bad faith (Paragraph 4a(iii)).

The Respondent may demonstrate a right or legitimate interest in a domain name. Circumstances similar to those under the Uniform Domain Name Dispute Resolution Policy of ICANN (the UDRP) can be invoked by a Respondent to demonstrate rights or legitimate interests. Similarly, the instances of bad faith exemplified in the UDRP can be invoked by a Complainant. However, because STOP and STOP Rules come into play shortly after registration of a domain name, the focus of attention will be on bad faith at the time of registration.

Complainant has registered the trademark ALLFINANZ in Austria under registration number 128926. The pertinent portion of the domain name <allfinanz.biz> is identical to Complainant’s trademark ALLFINANZ.

The Panel notes that both Complainant and Respondent are from German speaking countries (Austria and Germany respectively). The Panel has conducted a search using the Google search engine for allfinanz, which resulted in over 11,500 hits relating to websites in the German language. The Panel took a random sample from these hits. This revealed that on a considerable number of these websites "allfinanz" is used as a generic term for the offering of various financial services and insurance products. Results among the first twenty hits include companies with names such as "Tepperis Allfinanz", "Hansa-Allfinanz" and "1ALL der clevere Allfinanze-Dienstleister".

The search also found various articles on Allfinanz as it relates to the offering of a combination of financial services and insurance products. In his article on the merger of Dresdner Bank and Allianz Insurance in Businessweek Online of 16 April 2001, columnist David Fairlamb describes ‘Allfinanz’ as "the German equivalent of a financial supermarket".

On the basis of this research, the Panel concludes that Allfinanz is a descriptive term in the German language, which is used to describe (the offering of) a combination of financial services and insurance products.

Since Respondent currently offers on the website <allfinanz.biz> various financial and insurance services to pharmacies, Respondent has a legitimate interest in the domain name <allfinanz.biz> in accordance with article 4(a)(ii) of STOP.

Since Respondent has a legitimate interest in the domain name <allfinanz.biz> it is not necessary for the Panel to consider bad faith. The Panel notes that the fact that Respondent has offered to buy Complainant’s IP claim does not establish evidence of bad faith, if only because Allfinanz is a descriptive term in the German language.

On the basis of the foregoing, the Panel decides that the Complaint be denied.