The Complainants are AXA SA and AXA BANQUE SA, Paris, France, represented by Selarl Marchais de Candé, France.
The Respondent is Glenn Snapp, Cotonou, Benin.
2. The Domain Name and Registrar
The disputed domain name <axa-banque.net> (the “Disputed Domain Name”) is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 17, 2009. On February 18, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the Disputed Domain Name. On February 18, 2009, eNom 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 26, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was March 18, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 20, 2009.
The Center appointed Jacques de Werra as the sole panelist in this matter on March 31, 2009. 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
The first Complainant, AXA SA, is the holding company of the AXA Group, whose main business is in the field of insurance and financial services. The Group is widely known under the trade name ‘AXA' in relation to its fields of business.
The second Complainant, AXA BANQUE, is a company of the AXA Group that is exclusively dedicated to banking and mortgage services.
The first Complainant is the owner of numerous trademarks for AXA in various countries and regions (the “AXA Trademark”), including Australia, the European Union (Community trademark), France, the United States of America as well as Benin which is where the Respondent appears to be based (the protection in this country being covered on the basis of a regional registration with the African Intellectual Property Organization, i.e. l'Organisation Africaine de la Propriété Intellectuelle, OAPI). It is the owner of the following trademarks (among others):
- International trademark AXA No. 490 030 filed on December 5, 1984 in classes 35, 36 and 39 especially for “insurances and finance” designating various countries (including Algeria, Austria, Benelux, Bosnia, Croatia, Czech Republic, Germany, Egypt, Hungary, Italy, Liechtenstein, Monaco, Morocco, Portugal, the Democratic People's Republic of Korea, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Sudan, Switzerland, Ukraine and Viet Nam);
- Community trademark AXA n° 000373 894 filed on August 28, 1996 in classes 35 and 36 and duly renewed;
- French trademark AXA n°1 282 650 filed on August 7, 1984 in classes 12, 14, 16, 18, 25, 28, 34, 35, 36 and 39 and duly renewed;
- OAPI trademark AXA n°75127, filed on December 14, 1984 in classes 35, 36 and 39, and duly renewed;
- OAPI trademark AXA n°43743, filed on February 6, 2001 in class 38.
The first Complainant is also the owner of a French trademark AXA BANQUE nº 1 282 656 filed on August 7, 1984 and duly renewed in classes 12, 14, 16, 18, 25, 28, 34, 35, 36, 39 and 41 (the “AXA BANQUE Trademark”).
The Complainants operate websites at “www.axa.com”, “www.axa.fr”, “www.axabanque.fr” and “www.axabanque.com”.
The Disputed Domain Name was registered on July 18, 2008. The Disputed Domain Name has not been activated.
5. Parties' Contentions
A. Complainants
The Complainants contend that the Dispute Domain Name is quasi identical to the AXA BANQUE Trademark and that it is confusingly similar to the AXA Trademark which are owned by the first Complainant.
The Complainants further allege that the Respondent does not have any legitimate interest in using the Disputed Domain Name since the Registrant's name (“Glenn Snapp”) does not have any resemblance with neither the words “AXA” nor “AXA BANQUE”. They also allege that they have never licensed or otherwise permitted the Respondent to use their trademarks or to register any domain name including them.
The Complainants finally contend that the Respondent has registered in bad faith the Disputed Domain Name which corresponds to the AXA Trademark and to the AXA BANQUE Trademark and to domain names owned by the Complainants because the Respondent registered the Disputed Domain Name in order to abusively take benefit from the Complainants' reputation given that the Respondent must have been aware of the existence of the AXA Trademark and of the AXA BANQUE Trademark before registering the Disputed Domain Name. The Complainants also allege that the Respondent is using the Disputed Domain Name in bad faith, because “passive holding” of a domain name can amount to bad faith in the circumstances of this case.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that the complainant must prove each of the following three elements in order to succeed in a UDRP proceeding. Thus, for the complainant to succeed, it must prove all of the three elements under the Policy:
(i) the respondent's domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the respondent's domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainants contend that the Dispute Domain Name is quasi identical to the AXA BANQUE Trademark and that it is confusingly similar to the AXA Trademark which are owned by the first Complainant.
The Panel holds that the Disputed Domain Name is quasi identical to the AXA BANQUE Trademark, the only difference consisting in an hyphen which was added in the Disputed Domain Name. The Panel also holds that the Disputed Domain Name is confusingly similar to the AXA Trademark, given that it fully integrates its highly distinctive element (i.e. AXA) and that “BANQUE” (i.e. bank) is a generic term which cannot affect the overall impression.
On this basis, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainants' AXA Trademark and AXA BANQUE Trademark (which are both formally owned by the first Complainant). Therefore, the Complainants have established that the condition of paragraph 4(a)(i) of the Policy is met.
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, the following circumstances can demonstrate rights or legitimate interests of a respondent in a domain name:
(i) before any notice was given to the respondent of the dispute, the respondent used, or demonstrably made 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 though it has not acquired any trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name.
The Complainants assert that the Respondent has no rights or legitimate interests in the Disputed Domain Name. They also argue that the Respondent has not been licensed, or otherwise permitted in any way by the Complainants to use the AXA Trademark or the AXA BANQUE Trademark and to register any domain name incorporating any of them.
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, previous UDRP panels have consistently ruled that paragraph 4(c) of the Policy shifts the burden to the respondent to come forward with evidence of a right or a legitimate interest in the domain name, once the complainant has made a prima facie showing. See Document Technologies, Inc. v. International Electronic Communications Inc.,
WIPO Case No. D2000-0270.
In this case, the Panel is satisfied that the Complainants have made the required prima facie showing so that the burden has shifted to the Respondent. In this respect, the Panel notes that the Respondent which has not responded in these proceedings and which is not actively using the Disputed Domain Name has not brought any evidence or indication showing its use, or demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. The Panel also notes that the passive holding of the Disputed Domain Name does not constitute a legitimate use of such domain name. See Teachers Insurance and Annuity Association of America v. Wreaks Communications Group,
WIPO Case No. D2006-0483.
Therefore, the Panel is satisfied that the Respondent lacks rights or legitimate interests in the Disputed Domain Name under the Policy. The Panel thus concludes that the condition of paragraph 4(a)(ii) of the Policy has been established by the Complainants.
C. Registered and Used in Bad Faith
Based on the uncontradicted statements of the Complainants as well as on previous UDRP decisions, the Panel accepts that the AXA Trademark is well known internationally. See Finaxa S.A. v. Spiral Matrix,
WIPO Case No. D2005-1044 and FINAXA v. Managing Trustee/MeridianGlobal,
WIPO Case No. D2004-0509.
Based on the Complainants' uncontradicted assertions, the Panel is also convinced that the AXA Trademark is widely known as designating the Complainants and that the choice of the Disputed Domain Name was made by the Respondent with the Complainants and the AXA Trademark in mind and for no other reason. The same reasoning applies with respect to the AXA BANQUE Trademark owned by the first Complainant.
The Panel is thus of the opinion that the Respondent registered the Disputed Domain Name in order to create an association with the AXA Trademark and the AXA BANQUE Trademark as well as with the name of the Complainants for the purpose of attracting users to its future website. The Panel further notes that the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use of the Disputed Domain Name. On this basis, the registration of the Disputed Domain Name which incorporates a well-known trademark by a third party which has no connection to the owner of the trademark and was not authorized to do so and had no legitimate purpose to use the trademark is a strong indication of bad faith. See Société pour l'Oeuvre et la Mémoire d'Antoine de Saint Exupéry Succession Saint Exupéry-D'Agay v. Perlegos Properties,
WIPO Case No. D2005-1085.
Based on the foregoing, the Panel finds that the Respondent registered the Disputed Domain Name and is using it in bad faith so that the requirements of paragraph 4(a)(iii) of the Policy are met.
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-banque.net> be transferred to the second Complainant AXA BANQUE SA.
Jacques de Werra Sole Panelist
Dated: April 10, 2009
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