WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Allianz Sigorta A.S v. Efe Sancak

Case No. D2011-0111

1. The Parties

The Complainant is Allianz Sigorta A.S of Istanbul, Turkey, represented by Dericioğlu & Yaşar Law Office, Turkey.

The Respondent is Efe Sancak of Istanbul, Turkey.

2. The Domain Names and Registrar

The disputed domain names <allianzemeklilik.com> and <allianzsigorta.com> are registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 20, 2011. On January 20, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain names. On January 20, 2011, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 1, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was February 21, 2011. The Response was filed with the Center on February 21, 2011.

On February 28, 2011, the Complainant filed supplemental filings.

The Center appointed Kaya Köklü as the sole panelist in this matter on March 3, 2011. 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.

On March 24, 2011, in response to a Panel Order sent to the Parties on March 10, 2011, the Complainant provided documents concerning its authorization to claim rights in the trademark ALLIANZ on behalf of the parent company Allianz SE. The Respondent replied to the Complainant’s additional submission on April 4, 2011.

In accordance with the Rules, paragraph 11, and since the Parties have not agreed otherwise, the language of the administrative proceedings is the language of the Registration Agreement (i.e., English).

4. Factual Background

The Complainant is a Turkish insurance company belonging to the well-known Allianz Group. The Allianz Group was first established in the year 1890 and belongs to the worldwide leading insurance companies, it’s headquarter is located in Munich, Germany.

The Complainant offers various kinds of insurance products and services in Turkey.

The parent company of the Complainant, Allianz SE, is the registered owner of a large number of national, Community and international trademarks. Since 1997, Allianz SE also owns registered trademark rights in Turkey for various goods and services, in particular in respect to insurance services.

Further to the trademark rights of its parent company, the Complainant has registered and operates domain names ending with the Turkish TLD “.tr”, including <allianz.com.tr>, <allianzsigorta.com.tr> and <allianzemeklilik.com.tr> since 2008.

According to the information provided in the Complaint, the disputed domain names <allianzemeklilik.com> and <allianzsigorta.com> were created on December 19, 2007 and registered in the name of the Respondent. The Respondent is an individual located in Istanbul, Turkey.

When the Panel visited the disputed domain names on March 27, 2011, it recognized that both Internet sites linked to the disputed domain names were apparently identical in design and content. The provided information under the disputed domain names was of rather general nature and related to the pension system in Turkey.

The Panel further recognized a disclaimer at the top of each of the disputed domain names stating that there is no direct or indirect relationship between the Respondent’s Internet presentation and the Complainant or its affiliated companies.

5. Parties’ Contentions

A. Complainant

The Complainant argues that it makes business in Turkey since 1923, initially starting with the company name “Sark Sigorta”. It is alleged that in 1998 the company’s name changed into “Koc Allianz Sigorta” and “Koc Allianz Hayat Sigorta A.S.” The Complainant states that in 2008 the Allianz Group and the Koc Group separated their business and the Allianz Group has continued its work as “Allianz Sigorta A.S.” and “Allianz Hayat ve Emeklilik A.S.”

As a remedy in these administrative proceedings, the Complainant requests the transfer of the disputed domain names, based on the following reasons:

First, the Complainant argues that it is entitled to claim trademark rights in the mark ALLIANZ, which are registered in the name of its parent company Allianz SE.

Second, the Complainant believes that the disputed domain names are identical or at least confusingly similar to the ALLIANZ trademark as they fully incorporate the mark ALLIANZ.

Third, the Complainant argues that the Respondent has no right or legitimate interest in respect of the disputed domain names and has registered and used them in bad faith.

In this regard, the Complainant underlines that it has never granted a permission or license to the Respondent to use the trademark ALLIANZ. It is further alleged that the Respondent has never used and does not intent to use the mark ALLIANZ in connection with a bona fide offering of goods and services or in any other legitimate commercial or noncommercial way.

Finally, the Complainant believes that the Respondent must have known the ALLIANZ trademark well before the registration of the disputed domain names.

B. Respondent

The Respondent argues that it does not infringe any rights in the mark ALLIANZ as the disputed domain names have been created almost a year prior to the creation of the Complainant’s domain names <allianzsigorta.com.tr> and <allianzemeklilik.com.tr>.

Furthermore, the Respondent argues that the Complainant cannot claim any firm name rights as it is alleged to be legally established not before September 26, 2008 and hence, well after the registration of the disputed domain names in 2007.

Also, the Respondent believes that there is no likelihood of confusion between the disputed domain names and the Internet sites of the Complainant, in particular as the Respondent uses a disclaimer at the top of its websites.

In addition, the Respondent alleges that he does not make any commercial use of the disputed domain names. He states that he only provides general and noncommercial information on a recently introduced individual pension system in Turkey. In his view, this kind of use is a legitimate use and does not infringe any trademark rights of the Complainant.

The Respondent also believes that he did not register the disputed domain names in bad faith. His good faith is alleged to be indicated by the provision of his true name, e-mail address and phone number with the registration of the disputed domain names. Furthermore, he argues that he never intended to sell, rent or otherwise transfer the disputed domain names to the Complainant or its competitors.

In this regard, the Respondent further argues that there has been no evidence provided by the Complainant indicating a bad faith registration and use of the disputed domain names.

Finally, the Respondent is convinced that the long delay in initiating legal action against the disputed domain names indicates that the Complainant does not seem to be confident to have better rights in the disputed domain names and, hence, does not expect to win the case.

6. Discussion and Findings

According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any other rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.

In accordance with paragraph 4(a) of the Policy, the Complainant has to prove that each of the three following elements is satisfied:

(i) The disputed domain names are identical or confusingly similar to the trademark in which the Complainant has rights;

(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain names; and

(iii) The disputed domain names have been registered and are being used in bad faith.

Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled.

With regard to any uncontested information provided by the Complainant, the Panel may appropriately accept the provided reasonable factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.

As already indicated above, it is noted that an independent research by visiting the Internet sites linked to the disputed domain names has been performed by the Panel. The competence of the Panel to perform such independent research is undisputed and in line with previous UDRP decisions, e.g., Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain names <allianzemeklilik.com> and <allianzsigorta.com> are confusingly similar to the ALLIANZ trademark.

First, the Panel acknowledges that the mark ALLIANZ is trademark protected and enjoys highest degree of recognition and fame in various jurisdictions worldwide, including in Turkey,

Second, the Panel confirms that the Complainant is authorized to claim such trademark rights in the mark ALLIANZ in the present administrative proceedings. But contrary to the opinion of the Complainant, the Panel finds that this authorization does not origin in the referred domain name registrations or firm name rights as both were apparently registered well after the registration of the disputed domain names by the Respondent. However, the Panel finds that this does not need to be discussed in more detail as the authorization at least origins in the written authorization by the parent company of December 8, 2010, subsequently provided in the Complainant’s submission to the Panel Order. The Panel notes that according to this written proof, the Complainant is authorized to claim trademark rights in the mark ALLIANZ in any UDRP proceedings against alleged trademark infringer on behalf of Allianz SE. Hence, the Panel concludes that the Complainant has satisfied the threshold requirement of being authorized to claim rights in the trademark ALLIANZ.

Third, the Panel finds that the disputed domain names are confusingly similar to the trademark ALLIANZ.

The disputed domain names <allianzemeklilik.com> and <allianzsigorta.com> fully incorporate the trademark ALLIANZ. The only difference is the addition of generic terms in the Turkish language. The Panel, which is familiar with the Turkish language, acknowledges that the Turkish terms used in the disputed domain names have the following meanings in the English language:

“emekilik” means “pension”

“sigorta” means “insurance”

In the Panel’s view, the addition of content-related generic terms like “pension” or “insurance” does not negate the confusing similarity between the Complainant’s trademark and the disputed domain names. The Panel finds that these incorporations are rather descriptive and do not create a new distinctiveness separate from the Complainant’s trademark ALLIANZ. Quite the opposite, the Panel believes that the full inclusion of the Complainant’s trademark in combination with some content-related generic terms may even enhance the false impression that the Internet sites linked to the disputed domain names are somehow officially linked to the Complainant.

This assessment is additionally supported by the fact that the Turkish terms “emeklilik” and “sigorta” as used in the disputed domain names are also part of the company name of the Complainant and its Turkish affiliate, namely “Allianz Sigorta A.S.” and “Allianz Hayat ve Emeklilik A.S.”.

Bearing in mind the notoriety of the mark ALLIANZ, the Panel concludes that the disputed domain names are likely to confuse Internet users into their believing that the disputed domain names are affiliated or endorsed by the Complainant or that the use of the disputed domain names are at least authorized by the Complainant or its affiliated companies.

Unlike the opinion of the Respondent and in line with previous UDRP decisions, the Panel finds that a disclaimer, as used in the present case, does not negate likelihood of confusion. This is particularly the case as Internet users reading the disclaimer have already been misled by the confusing similarity of the disputed domain names and the relevant trademark. In the present case, the Panel finds that the disclaimer may, if at all, become relevant in the assessment of bad faith registration and use of the disputed domain names.

Hence, the Panel is of the opinion that the disputed domain names are confusingly similar to the trademark ALLIANZ and therefore concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled.

B. Rights or Legitimate Interests

The Panel further believes that the Respondent has not sufficiently demonstrated any right or legitimate interest in the disputed domain names.

While the burden of proof remains with the Complainant, the Panel finds that this would result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s lack of rights or legitimate interests is primarily within the knowledge and sphere of the Respondent. Therefore, the Panel agrees in line with prior UDRP decisions that the Complainant is required to make out a prima facie case before the responsibility shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain names in order to meet the requirements in paragraph 4(a)(ii) of the Policy, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.

The Panel finds that the Complainant has satisfied this requirement by providing uncontested prima facie evidence that the Respondent has no trademark, license or any similar right to use the mark ALLIANZ in the disputed domain names.

The Respondent, however, has failed to provide any evidence or convincing arguments to demonstrate a right or any other legitimate interest in the disputed domain names according to the Policy, paragraphs 4(a)(ii) and 4(c).

First, the Respondent’s allegation to have better rights in the disputed domain names is not convincing. It is true that the Respondent has registered the disputed domain names prior to the Complainant’s identical Turkish ccTLDs <allianzsigorta.com.tr> and <allianzemeklilik.com.tr>. However, this does not create any rights or legitimate interests in the disputed domain names as they fully incorporate the ALLIANZ trademark, which – at the date of registration of the disputed domain names - was already trademark protected and well-recognized worldwide, including in Turkey. Additionally, in its response to the Panel Order the Complainant provided evidence showing that the Turkish company registration of the Complainant in fact dates back to 1923, so that the Respondent cannot even claim to have a domain name registration prior to the Complainant’s company name registration. Concluding, the Panel is of the opinion that the Respondent cannot claim any priority rights based on the date of registration of the disputed domain names.

Second, the Panel finds that the Respondent does not make a legitimate noncommercial or fair use of the disputed domain names. It may be true that the Respondent does currently not make a commercial benefit by operating the disputed domain names. However, the Respondent failed to provide any convincing justification that his use of the disputed domain names is a legitimate one. The Respondent in particular failed to provide any arguments why the use of the ALLIANZ mark in the disputed domain names shall be necessary and legitimate to provide general information on the Turkish pension system. The Panel, however, cannot conceive of any such legitimate reason. The Panel rather believes that this kind of use as performed by the Respondent is still eligible to misleadingly divert Internet users and to tarnish the ALLIANZ trademark.

Third, the Panel also finds that the Respondent has failed to provide any evidence that he is commonly known by the disputed domain names or has any rights or legitimate interests in the disputed domain names in connection with a bona fide offering of goods or services.

Finally, the Panel is of the opinion that the Respondent cannot claim any right to use the disputed domain names based on an alleged forfeiture of trademark rights. Neither the UDRP Policy nor the facts of the case would justify a denial of the Complainant’s claim for transfer of the disputed domain names due to a delay in initiating the present UDRP administrative proceedings. The Respondent did not provide any indication that the Complainant has delayed its Complaint in a legally abusive manner. In the Panel’s view, such indication, if at all, would only be given if the Complainant intentionally had caused the false impression by way of any explicit or implicit behavior that it will tolerate the use of the disputed domain names. The case file, at least, does not contain any such indication that would justify an assessment of a forfeiture of rights.

As a conclusion, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Panel is further convinced that the Respondent has registered and used the disputed domain names in bad faith.

The Panel is well aware of the notoriety and reputation of the trademark ALLIANZ. The Panel believes that the Respondent must have known of this trademark when registering the disputed domain names. This is in particular likely as the disputed domain names have been registered well after the Complainant's trademark ALLIANZ has become recognized worldwide, including in Turkey.

It rather appears that the Respondent has registered the disputed domain names solely for the purpose of creating an association with the trademark ALLIANZ in order to mislead Internet users who may search for official pension and insurance services provided by the Complainant and its affiliated companies. The Panel is convinced that the Respondent was aware that a legitimate use of the disputed domain names would not have been possible without infringing the Complainant’s trademark rights.

This assessment is supported by the fact that the Respondent has made use of a disclaimer on the Internet sites linked to the disputed domain names. Unlike the Respondent’s view, the Panel is of the opinion that in the present case the existence of such a disclaimer does not cure the Respondent’s bad faith. The disclaimer rather demonstrates that the Respondent had prior knowledge of the trademark ALLIANZ.

Also, the Respondent failed in his argumentation that the provision of true contact details in the domain name registration does necessarily excludes the assessment of a bad faith registration. The Panel confirms that the provision of wrong contact details may indicate bad faith registration. However, this argument does not work the other way round, which means that the provision of true contact details does not necessarily excludes bad faith registration. Otherwise, cyber-squatter would be able to prevent any UDRP decision in favour of a trademark owner simply by providing true contact details in their domain name registration.

For the foregoing reasons, the Panel cannot conceive of any good faith use of the disputed domain names by the Respondent.

The Panel therefore concludes that the disputed domain names were registered and used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) 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 names, <allianzemeklilik.com> and <allianzsigorta.com> be transferred to the Complainant.

Kaya Köklü
Sole Panelist
Dated: April 5, 2011