The Complainant is Kabbage, Inc., United States of America (“United States” or “USA”), represented by The GigaLaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States.
The Respondent is Information Privacy Protection Services Limited, China / tanglan, China, self-represented.
The disputed domain name <kabbag.com> is registered with 22net, Inc. (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) in English on May 17, 2019. On May 17, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 20, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 20, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on May 21, 2019.
On May 20, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on May 21, 2019. The Respondent requested that Chinese be the language of the proceeding on May 22, 2019.
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 in English and Chinese of the Complaint, and the proceedings commenced on May 28, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 17, 2019. On June 10, 2019, the Respondent requested and was granted the automatic four calendar day extension for response under paragraph 5(b) of the Rules. The due date for Response was June 21, 2019. No Response was filed with the Center. On June 24, 2019, the Center informed the Parties that it will proceed to appoint the Panel.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on July 1, 2019. 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 a financial services company, headquartered in the United States. The Complainant operates a financial services data and technology platform offering automated loans and financial services to small businesses. The Complainant states that it has over 170,000 customers and that it has received numerous awards for its platform and services.
The Complainant owns a portfolio of trademark registrations (word and device marks) for KABBAGE, for instance, USA trademark registration number 3905311, registered on January 11, 2011 and USA trademark registration number 4682136, registered on February 3, 2015. The disputed domain name was registered on April 9, 2014. The Complainant submits evidence that the disputed domain name directs to an active website, which contains pay-per-click links to financial services originating from competitors of the Complainant.
The Complainant essentially contends that the disputed domain name is confusingly similar to its trademarks for KABBAGE, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered, and is being used in bad faith.
The Complainant claims that its trademarks are famous and well regarded in the financial services industry, and provides evidence of its marketing materials, as well as prior domain name decisions which state that the Complainant and its KABBAGE trademark are well known. Moreover, the Complainant provides evidence that the disputed domain name is linked to an active website. The Complainant contends that the website linked to the disputed domain name is using pay-per-click links to financial services of its competitors. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the domain name and constitutes bad faith.
The Complainant requests the transfer of the disputed domain name.
On June 10, 2019, the Respondent asked in Chinese for an extension of the deadline for its Response to June 21, 2019. Such extension was granted by the Center, pursuant to paragraph 5(b) of the Rules. Nevertheless, the Respondent failed to file a Response by the end of this extended term and therefore did not reply to the Complainant’s contentions.
Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceedings.
The Complainant stated that it could not locate the Registration Agreement, and that it therefore did not know in which language the Registration Agreement was drafted. Nevertheless, the Complainant filed its Complaint in English, and requested that the language of the proceeding be English. On May 20, 2019, the Center informed the Complainant that the language of the Registration Agreement is Chinese. On May 21, 2019, the Complainant confirmed its request that the language of the proceeding be English, and filed an additional motivated language request. On May 22, 2019, the Respondent sent eight emails to the Center (four of which were bilingual Chinese-English) requesting Chinese as the language of the proceeding.
The Panel has carefully considered all elements of this case, in particular, the Complainant’s request that the language of the proceeding be English and the Respondent’s request that the language of the proceeding be Chinese; the lack of response on the merits of the Respondent (the Panel notes that the Respondent had the opportunity to respond in either English or Chinese and got an extension to do so); the fact that the website linked to the disputed domain name contains text which is exclusively in English, and the fact that the Respondent sent four bilingual (Chinese-English) emails about the language of the proceeding on May 22, 2019 from which the Panel deducts that the Respondent is able to understand and communicate in English; and the fact that Chinese as the language of proceedings could lead to unwarranted delays and costs for the Complainant. In view of all these elements, the Panel rules that the language of proceedings shall be English.
The Policy requires the Complainant to prove three elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Based on the evidence and arguments submitted, the Panel's findings are as follows:
The Panel finds that the Complainant has provided sufficient evidence that it has valid rights in the mark KABBAGE based on its use and registration of the same as a trademark, incidentally commencing several years prior to the registration of the disputed domain name.
Moreover, as to confusing similarity of the disputed domain name with the Complainant’s trademarks, the disputed domain name consists only of the Complainant’s KABBAGE trademarks, from which the last letter “e” is omitted. The Panel concludes that this omission is an obvious misspelling of a well-known trademark, which moreover preserves the aural, conceptual and visual similarity with the Complainant’s KABBAGE trademarks. According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), section 1.9, “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. Accordingly, the Panel rules that the disputed domain name is confusingly similar to the Complainant's trademarks, and the Complainant has satisfied the requirements for the first element under the Policy.
The Complainant has demonstrated that the Respondent is not an authorized reseller, service provider, licensee or distributor, and is not making legitimate noncommercial use or fair use of the disputed domain name. To the contrary, the website linked to the disputed domain name is currently used as a platform offering links to providers of competing financial services, also containing what is presumed to be pay-per-click hyperlinks to competitors of the Complainant, which shows a clear intent on the part of the Respondent to obtain unlawful commercial gains from typosquatting. The Panel therefore considers that none of the circumstances of legitimate interests envisaged by paragraph 4(c) of the Policy apply. The Panel also notes that no evidence or arguments have been submitted by the Respondent in reply. The Panel therefore rules that the Complainant has satisfied the requirements for the second element under the Policy.
Given the reputation and fame of the Complainant's trademarks, the registration of the disputed domain name, which incorporates such trademarks, is clearly intended to mislead and divert consumers to the disputed domain name. Even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned, and owns, trademarks in KABBAGE and uses these marks extensively. In the Panel's view, this clearly indicates the bad faith of the Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain name in bad faith.
As to use of the disputed domain name in bad faith, the website linked to the disputed domain name is currently used as a platform offering pay-per-click hyperlinks to providers of competing financial services and provides an embedded hyperlink to <mydomaincontact.com>, where the disputed domain name is offered for sale and bids from potential buyers are requested. The Panel concludes that both the fact that the Respondent is requesting offers for sale of the disputed domain name, and that it is using the Complainant’s trademarks to mislead Internet users into clicking on pay-per-click links leading to competing third-party products and services, are clear indications of the Respondent’s use of the disputed domain name in bad faith. On the basis of these elements, the Panel rules that it has been demonstrated that the Respondent is using the disputed domain name in bad faith.
Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third element under the Policy.
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 <kabbag.com> be transferred to the Complainant.
Deanna Wong Wai Man
Date: July 12, 2019
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