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WIPO Domain Name Decisions_ D2002

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WIPO Domain Name Decisions_ D2002 Powered By Docstoc
					WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION FINAXA Société Anonyme v. James Lee Case No. D2002-1098

1.

The Parties The Complainant is FINAXA Société Anonyme, 75008 Paris, France, represented by Marchais de Cande, France. The Respondent is James Lee, of Kaohsiung, Taiwan 811, Province of China.

2.

The Domain Name and Registrar The disputed domain name <axa-insurance.com> is registered with Tucows, Inc.

3.

Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2002. On December 4, 2002, the Center transmitted by email to Tucows, Inc. a request for registrar verification in connection with the domain name at issue. On the same day, Tucows, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 December 11, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was December 31, 2002. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 2, 2003.

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The Center appointed Anne-Virginie Gaide as the sole panelist in this matter on January 9, 2003. 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.

4.

Factual Background Complainant is a member of the AXA Group, whose main business is in the field of insurance services. The Group is widely known under the trade name AXA. Companies of the AXA Group are established in many countries on several continents. One of these companies, AXA Assurances I.A.R.D. Succursale Taiwan, is based in Taiwan. It operates a web site at the address www.axatwn.com.tw. Complainant owns registrations for the service mark AXA (word) or AXA & design in relation to, inter alia, insurance services in numerous countries around the world, including France (reg. no. 1 282 650 of August 7, 1984), the U.S.A. (reg. no. 1,679,597 of March 17, 1992), China (reg. no. 774 571 of December 28, 1994) and Japan (reg. no. 4246187 of March 5, 1999). Complainant is also the owner of a British registration for the mark AXA INSURANCE & device in class 36 (reg. no. 1456415 of February 26, 1993, with a disclaimer on the word "insurance") and of a registration issued in Taiwan for the mark AXA & device in Chinese characters also in class 36 (reg. no. 84262 of August 16, 1996). The Domain Name <axa-insurance.com> was registered on March 28, 2002. At the time of the filing of the Complaint, the Domain Name was connected to a search site on the Internet. At the top of the site's home page (an excerpt of which was provided by Complainant) was featured the headline "www.axa-insurance.com Web Directory". Beneath was a list of categories such as "Finance", "Health", "Real Estate", "Jobs", "Recreation" or "Shopping", each comprising three to four items. Under the category "Finance" was an item entitled "Car insurance". Under the category "Health" was an item entitled "Health insurance". Parties’ Contentions A. Complainant

5.

Complainant's contentions are the following: The Domain Name is identical to Complainant's British mark AXA INSURANCE & design and confusingly similar to its registrations for the mark AXA. In this respect, the incorporation in the Domain Name of the generic term "insurance", which corresponds to services offered by Complainant, aggravates the likelihood of confusion between the Domain Name and the mark AXA. Complainant has never licensed or otherwise permitted Respondent to use its marks or register a domain name incorporating its marks. Respondent's business is obviously not

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in the area of insurance, and Respondent has consequently no rights or legitimate interests in respect of the Domain Name. Finally, Respondent must have been aware of the reputation of the mark AXA and of its connection with Complainant's business at the time of registration of the Domain Name, and he should have known that registration and use of the Domain Name would misrepresent an association with Complainant and the AXA Group. Registration was therefore effected in bad faith. Complainant points out in this respect that it owns trademark registrations in Taiwan and that the AXA Group is represented in Taiwan by AXA Assurances I.A.R.D. Succursale Taiwan. The web site of Respondent is a search engine sponsored by different companies concerning all sorts of activities including inter alia insurance services. The web site offers numerous links to insurance and other companies. The Respondent intentionally attempted to attract Internet users for commercial gain by creating a likelihood of confusion with Complainant's trademarks, trade name, and existing domain names, thus using the Domain Name in bad faith. B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6.

Discussion and Findings According to Paragraph 4(a) of the Policy, the Complainant must assert and prove each of the following: i) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and the Respondent has no rights or legitimate interests in respect of the domain name; and

ii)

iii) the domain name registered by the Respondent has been registered and is being used in bad faith. A. Identical or Confusingly Similar

The Domain Name is identical to the British service mark AXA INSURANCE & design (reg. no. 1456415). The presence of a hyphen in the Domain Name does not constitute a material difference in this respect. The Domain Name is moreover confusingly similar to the service marks AXA or AXA & design, for which Complainant owns several registrations. Indeed, the Domain Name reproduces entirely the term AXA, which has no particular meaning and is accordingly distinctive. The term "insurance", on the contrary, is purely descriptive and is not apt to influence significantly the overall impression produced by the Domain Name, which is dominated by the term "axa" (see on this issue WIPO Case No. D2000-1377 AXA China Region Limited v. KANNET Limited, where the Panel held that the suffixes "chinaregion" were generic and did not effectively distinguish the domain name <axachinaregion.com> from the mark AXA).

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In view of the above, the Panel finds that the Domain Name is identical or confusingly similar to service marks in which Complainant has rights. B. Rights or Legitimate Interests

Complainant has not permitted or otherwise licensed Respondent to register the Domain Name. From the excerpt of Respondent's web page provided by Complainant, it does not appear that Respondent is offering insurance services. His web page is indeed described as a "web directory" and purports to permit users to conduct searches on subjects as varied as finance, health, shopping, arts, home or science. Moreover, even though the Internet address "www.axa-insurance.com" is featured prominently at the top of the page, no reference to the insurance services of the AXA Group or to other insurance services designated by the name AXA can be found on the available excerpt. The sole apparent connection of Respondent's web site with the field of insurance consists in the presence of the items "Car Insurance" and "Health Insurance" in the Directory. It thus may be that Respondent is providing links to the sites of insurance providers or even information on insurance services. However, in the absence of any visible reference to insurance services provided under the name AXA, the mere possibility to access insurance related information from Respondent's web site is not sufficient to justify a finding that Respondent may have a legitimate interest in the use of the Domain Name. According to the Rules, paragraph 14(b), the Panel may draw from Respondent's default the inferences that it considers appropriate. In the present case, it appears that the Complaint sent by the Center to Respondent by courier was successfully delivered. However, Respondent did not to reply to the Complaint. The Panel draws from Respondent's default and from the lack of visible connection between the choice of the Domain Name and Respondent's activities, the inference that Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith

According to Paragraph 4(b)(iv) of the Policy, the following circumstance shall be evidence of the registration and use of a domain name in bad faith: "by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation or endorsement of your web site or location or of a product or service on your web site or location". The circumstances of the case lead the Panel to believe that Respondent knew Complainant's mark and did not reproduce it in the Domain Name by coincidence. Indeed, the name AXA does not have a particular meaning that the Panel would be aware of. Whereas the choice of the three letters AXA without knowledge of Complainant's mark would not be impossible in view of the brevity of this term, the involuntary combination of the letters AXA with a descriptive word corresponding to Complainant's line of business appears completely unlikely. Finally, the fact that a member of the AXA Group was established in Taiwan under the name AXA
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Assurances I.A.R.D Succursale Taiwan and operated a Taiwanese web site allows to conclude that Respondent was aware of Complainant's mark. The commercial nature of Respondent's web site is evidenced by the terms "For Sale, contact us" just under the headline "www.axa-insurance.com Web Directory". By using the Domain Name <axa-insurance.com>, Respondent obviously tried to attract consumers seeking Complainant's official web site, or at least a web site devoted to insurance services of the AXA Group, to a web site that did not correspond to their expectations, and from which they could be diverted to on-line locations without any relation whatsoever with Complainant or the AXA Group. In other words, Respondent attempted to misleadingly divert Internet traffic that was initially intended for Complainant and to profit from such traffic (on this kind of bad faith behavior, see WIPO Case No. D2001-0193 Microsoft Corporation v. Mindkind). Moreover, by featuring the address "www.axa-insurance.com" prominently on his home page, Respondent acted in a manner apt to mislead consumers into thinking that Complainant was endorsing the web directory services provided by Respondent or that Respondent was affiliated with Complainant, even though the content of the web page was not devoted to the insurance services of Complainant. The mention of "Car insurance" and "Health insurance" among the items to be searched could only enhance this impression. In view of the above, the Panel finds in application of Paragraph 4(b)(iv) of the Policy that the Domain Name was registered and used in bad faith.

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 name <axa-insurance.com> be transferred to the Complainant.

_____________________________ Anne-Virginie Gaide Sole Panelist Dated: January 20, 2003

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