The Complainant is AXA SA, France, represented by Selarl Candé - Blanchard - Ducamp, France.
The Respondent is Sefa Deniz, France.
The disputed domain name <axaconnect-web.com> is registered with One.com A/S (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 3, 2020. On December 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 8, 2020, 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.
In addition, the Center sent an email communication in both French and English regarding the language of the proceeding on December 8, 2020. The Complainant replied on December 9, 2020 submitting an amendment to the Complaint requesting English to be the language of the proceeding and the Respondent did not submit any comments.
The Center verified that the Complaint together with the amendment to 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 both French and English, and the proceedings commenced on December 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 5, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 6, 2021.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on January 22, 2021. 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 is one of the world leaders in property-casualty insurance, life and savings insurance and asset management services, employing 160,000 persons in 57 countries and serving 108 million customers. It had in 2018 a turnover of EUR 103 billion.
The Complainant owns a large portfolio of registered trademarks containing the term “axa”, including, inter alia, French trademark No. 1270658 for “AXA” registered on January 10, 1984; International trademark No. 490030 for AXA registered on December 5, 1984, and European Union Trade Marks (EUTMs) No. 00373894 and No. 008772766 for AXA, respectively registered on July 29, 1998 and on September 7, 2012 (together referred to hereinafter as: “the Mark”).
The Complainant owns many domain names with the element “axa”, such as <axa.com>, registered on October 23, 1995.
The disputed domain name <axaconnect-web.com> was registered on April 8, 2020.
The disputed domain name resolved to a parking page of the Registrar and at the time of the decision, it does not resolve to an active webpage.
(i) The Complainant submits that the disputed domain name reproduces the Mark, in which the Complainant has rights, and is confusingly similar to the Mark insofar as the disputed domain name, <axaconnect-web.com>, contains the distinctive element “axa” in its entirety, followed by the descriptive term “connect”, a hyphen and the descriptive term “web”, such addition not being capable of dispelling the confusing similarity.
(ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Furthermore, the Complainant contends that it never authorized the Respondent to use the Mark in any manner and that the Respondent has never had any affiliation with the Complainant.
(iii) The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant alleges that the Respondent had knowledge of the Mark when registering the disputed domain name.
(iv) The Complainant contends that by creating confusion with the Mark for phishing purposes, the Respondent is using the disputed domain name in bad faith.
(v) The Complainant requests that the disputed domain name be transferred to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
Paragraph 11(a) of the Rules provides that “[u]nless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative 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”.
The Registrar confirmed that the language of the Registration Agreement of the disputed domain name is French.
The Complainant in its Amendment to the Complaint argued that the Respondent incorporated the English words “connect” and “web” in the disputed domain name, thus using and demonstrating a good understanding of the English language, and formally requested that the language of the proceeding be English, to which the Respondent failed to comment or to object.
In the light of the above circumstances, particularly the fact that it would be disproportionate to burden the Complainant with the time and cost of translating and submitting the Complaint in French, and having to ensure pursuant to paragraph 10(c) of the Rules that the administrative proceeding takes place with due expedition, the Panel, who is conversant in both English and French, determines pursuant to paragraph 11(a) of the Rules that the appropriate language of the proceeding is English.
Under the Rules, paragraphs 5(f) and 14(a), the effect of a failure to submit a formal response by the Respondent is that, in the absence of exceptional circumstances, the Panel shall proceed to a decision on the basis of the Complaint.
Under paragraph 4(a) of the Policy, it is the Complainant’s burden to establish that all three of the required criteria for a transfer of the disputed domain name have been met, even in the absence of a formal response.
Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences from the Respondent’s failure to file a formal response as it considers appropriate under the circumstances.
In this case, the Panel finds that the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant.
In particular, by failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy or otherwise, from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.
Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent has acted in bad faith.
In comparing the Mark with the disputed domain name <axaconnect-web.com>, it is evident that the latter consists of the Mark, followed by the descriptive word “connect”, a hyphen, the descriptive word “web”, and the generic Top-Level Domain (“gTLD”) “.com”.
It is well established that a gTLD is generally disregarded in the assessment of a domain name for the purpose of determining identity or confusingly similarity. See the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.1.
The Panel finds that the disputed domain name <axaconnect-web.com> is confusingly similar to the Mark, which is incorporated in its entirety and followed by the terms “connect” and “web”, and that the addition of those terms does not avoid a finding of confusing similarity, because the Mark remains sufficiently recognizable within the disputed domain name. See, in relation to the addition of the terms “web” and “connect”, AXA SA v. Duffet Orlene, WIPO Case No. D2020-1102 and WIPO Overview 3.0, section 1.8.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, previous UDRP panels have recognized that with regard to paragraph 4(a)(ii) of the Policy, this could result in the often impossible task of proving a negative proposition, requiring information that is primarily, if not exclusively, within the knowledge of a respondent.
Thus, the consensus view of previous UDRP panels is that paragraph 4(c) of the Policy shifts the burden of production of evidence to the respondent to come forward with evidence of rights or legitimate interests in a domain name, once the complainant has made a prima facie case showing, as the Panel finds the Complainant has made in this case, based on the facts and arguments set out above. See Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270, and WIPO Overview 3.0, section 2.1.
As previously noted, the Respondent offered no reason for selecting the disputed domain name. There is no evidence that the Respondent is known by the disputed domain name or uses (or has made bona fide preparations to use) the disputed domain name in a business or otherwise.
The disputed domain name resolves to a parking page of the Registrar’s website.
No information is provided on what rights or legitimate interests the Respondent may have in the disputed domain name.
To counter any notion that the Respondent has such rights or legitimate interests, the Complainant has argued that the Respondent (i) has no affiliation with the Complainant, (ii) received no authorization from the Complainant to register or use the disputed domain name and (iii) used the disputed domain name to attract Internet users to his website and to engage in a phishing scheme, which the Respondent failed to deny.
In the circumstances, the Panel concludes that the Complainant has established the requirement of paragraph 4(a)(ii) of the Policy with respect to the disputed domain name.
As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant in registering a domain name confusingly similar to the Mark.
It is established in prior UDRP panel decisions that where the respondent knew or should have known of a trademark prior to registering the disputed domain name, such conduct may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Weetabix Limited v. Mr. J. Clarke, WIPO Case No. D2001-0775.
In this case, considering the fact that the Mark is well known, as prior UDRP panels have confirmed (See Finaxa SA v. Spiral Matrix, WIPO Case No. D2005-1044; AXA SA v. Frank Van, WIPO Case No. D2014-0863 and AXA SA v. Duffet Orlene, WIPO Case No. D2020-1102), the Panel finds it impossible to believe that the Respondent chose to register the disputed domain name randomly with no knowledge of the Mark. See Barney’s Inc. v. BNY Bulletin Board, WIPO Case No. D2000-0059; Kate Spade, LLC v. Darmstadter Designs, WIPO Case No. D2001-1384, citing Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028; and SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092.
Prior UDRP panels have held that bad faith use of a domain name by a respondent may also result from the fact its good faith use is in no way plausible, considering the specificity of the activity (see Audi AG v. Hans Wolf, WIPO Case No. D2001-0148). The Panel finds it is indeed not possible to imagine any plausible future active use of the disputed domain name that would not be illegitimate, considering the specificity of the Complainant’s activity.
The Panel also notes that the Complainant argued that the disputed domain name has been used for phishing purposes but provided no evidence in this respect. However, the disputed domain name currently does not resolve to an active webpage, and it is well established that the mere passive holding of a domain name may, in appropriate circumstances, be evidence not only of bad faith registration, but also of bad faith use. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; DCI S.A. v. Link Commercial Corporation, WIPO Case No. D2000-1232; Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques, WIPO Case No. D2000-0004; and Alitalia–Linee Aeree Italiane S.p.A v. Colour Digital, WIPO Case No. D2000-1260.
Finally, prior UDRP panels have held that in certain circumstances, registrants of domain names have an affirmative duty to abstain from registering and using a domain name which is either identical or confusingly similar to a prior trademark held by others and that contravening that duty may constitute bad faith. See Policy, paragraph 2(b); Nike, Inc. v. B. B. de Boer, WIPO Case No. D2000-1397; Nuplex Industries Limited v. Nuplex, WIPO Case No. D2007-0078; Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304; BOUYGUES v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325; Media General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964; and mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141.
The Panel concludes in the light of all these circumstances that the Respondent’s registration and use of the disputed domain name constitute bad faith, and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case.
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 <axaconnect-web.com> be transferred to the Complainant.
Louis-Bernard Buchman
Sole Panelist
Date: January 27, 2021