The Complainant is InCred Management and Technology Services Private Limited of Mumbai, India, represented by ANA Law Group, India.
The Respondent is InUdayipu CredMathram of Mumbai, India. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 4, 2018. On July 4, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 5, 2018, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on July 12, 2018.
The Center verified that the Complaint together with the amended 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, and the proceedings commenced on July 13, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 2, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 3, 2018.
The Center appointed Harini Narayanswamy as the sole panelist in this matter on August 7, 2018. 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 Complainant is an Indian finance-related company located in Mumbai. It offers its services under the INCRED mark and claims common law rights in the mark. The Complainant operates a website from the domain name . The said domain name was initially created on February 11, 1998 and was purchased by the Complainant on May 17, 2016.
The name of the Respondent as disclosed by the Registrar is InUdayipu CredMathram and is located in Mumbai. The Respondent has registered the disputed domain name on June 30, 2016. The disputed domain name resolves to a registrar parking page with pay-per-click ("PPC") links. 5. Parties' Contentions A. Complainant
The Complainant describes itself as a leading new-age financial services provider. The Complainant states that it was founded in 2016 and offers a range of financial services along with its group companies. Such services include providing personal loans, home loans, education loans, and business loans to Small and Medium Enterprises. The Complainant states it has over 500 employees and offices in major cities in India.
The Complainant states that it has spent a significant amount in promoting the INCRED mark and that it has received many awards, accolades and notable mentions in the print media for its services. The Complainant states it has acquired goodwill and reputation due to its high-quality services and that the INCRED mark is exclusively identified with its business.
The Complainant states the disputed domain name is confusingly similar to its corporate name "InCred Management and Technology Services Private Limited", its trademark INCRED, and its domain name . The Complainant states that it has used its mark extensively since May 2016. The Complainant adds that its mark is a coined mark and therefore it is inherently distinctive. The Complainant states that it has filed trademark applications for its INCRED mark bearing application numbers: 3372594 (word), 3628695 (device) and 3774843 (device).
The Complainant requests for transfer of the disputed domain name based on the three elements of paragraph 4(a) of the Policy: that the disputed domain name is identical or confusing similar to a mark in which the Complainant has rights, the Respondent has no rights or legitimate interests in the disputed domain name and the disputed domain name has been registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) the Policy, a complainant must establish three elements to obtain transfer of the disputed domain name, these are:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent lacks rights or legitimate interests in the disputed domain name; and
(iii) The disputed domain name was registered and is being used in bad faith by the Respondent. A. Identical or Confusingly Similar
The first element requires the Complainant to establish the disputed domain name is identical or confusingly similar to a trademark or a service mark in which it has rights.
The term "trademark or service mark" as used in paragraph 4(a)(i) of the Policy encompasses both registered and unregistered or common law marks. See Section 1.1.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"). To establish unregistered or common law rights in a trademark for purposes of the UDRP, the complainant must show that its mark has become a distinctive identifier which consumers associate with the complainant's goods and/or services. Section 1.3, WIPO Overview 3.0.
The Panel finds that the Complainant has submitted evidence of its promotions, media reports and write ups referring to its mark which are published in leading newspapers, magazines and in other publications. The Panel also notes that the Complainant has used the domain name from May 17, 2016. On the basis of the evidence filed in these proceedings, the Panel finds the Complainant has established common law trademark rights in the INCRED mark for the purposes of the Policy.
The disputed domain name has the trademark INCRED and the word "finance". Typically, combining a trademark with a word that is associated with the business of a complainant would not prevent finding confusing similarity of the disputed domain name with the mark. See Deutsche Lufthansa AG v. Domain Admin, Whois Privacy Corp.,WIPO Case No. D2017-1985, where it was found that combining the trademark with the word "ticket" did not prevent finding confusing similarity of the domain name with the mark. Applying a similar line of reasoning in the present case, the word "finance" does not prevent a finding that the disputed domain name is confusingly similar to the INCRED mark.
The Panel finds the Complainant has successfully established the first requirement under paragraph 4(a) of the Policy, that the disputed domain name is confusingly similar to a mark in which the Complainant has rights. B. Rights or Legitimate Interests
The second element under paragraph 4(a) of the Policy requires the Complainant to make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Complainant has argued that the Respondent lacks rights or legitimate interests in the disputed domain name. The Complainant has submitted that it is the prior adopter and user of the INCRED trademark, which is a coined and unique mark. The Complainant has contended that due to the publicity and promotion of its mark, it has acquired rights in the mark and argues that the Respondent has registered the disputed domain name with knowledge of the mark. The Complainant states that it is not connected or associated with the Respondent and has not authorized the Respondent to register or use the disputed domain name containing its trademark.
The Respondent is in default and has not replied the allegations made in the Complaint. The Panel finds the Respondent is not known by the disputed domain name or the mark. There is no evidence that shows the Respondent has made legitimate, noncommercial fair use of the disputed domain name and there is no evidence of use or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. The disputed domain name resolves to a registrar parking page.
Under the circumstances discussed, the reasonable inference that can be drawn is that the Respondent has without authorization used the Complainant's trademark in the disputed domain name with an intention of seeking some benefit due to use of the mark or to exploit the mark in some manner. Such registration and use of the disputed domain name, to intentionally try to benefit from another's rights without authorization, is not suggestive of rights or legitimate interests in favor of the Respondent.
Accordingly, the Panel finds the Complainant has made a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, as required under the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
The third element requires the Complainant to establish the disputed domain name has been registered and is being used in bad faith by the Respondent.
The Panel finds the evidence on record establishes that the Complainant's use of the INCRED mark is from May 2016. The disputed domain name was registered on June 30, 2016. Given the fact that the Complainant had just started using the mark, when the disputed domain name was registered, the pertinent question under the circumstances is, whether the disputed domain name could have been registered in bad faith. In the Panel's assessment, the facts and circumstances of this case show that the disputed domain name has been registered in bad faith, and the reason for this finding is discussed in the next few paragraphs.
It is not uncommon for cybersquatters to target nascent trademark rights based on news and media reports and register domain names with the hope deriving some benefit, such as selling or transferring such domain names to the owner of the mark at a future date. Speculative domain name registrations, based on news of some emerging business and its nascent trademark rights under some circumstances, could be considered bad faith registration under the Policy. See Section 3.8.2, WIPO Overview 3.0, that enunciates panel views about domain names registered in anticipation of trademark rights to unfairly capitalize on a complainant's nascent, typically unregistered trademark rights.
The Complainant has argued that the INCRED mark is an inherently distinctive mark as the mark is a coined word that has no dictionary meaning. The Panel finds an article published in the Times of India Business dated June 27, 2016, that has written about the Complainant's finance business and the Complainant's use of the name "InCred" for its business. The disputed domain name was registered three days later, on June 30, 2016. The timing of registration of the disputed domain name that uses a coined term "Incred" with the word "finance" within a few days of the said news report or write-up in a leading Indian newspaper, belies mere co-incidence. The Panel is of the view, that under the circumstances discussed, the disputed domain name was likely registered in anticipation of the Complainant's nascent trademark rights, as the combination of "Incred" and "finance", has no other significance, except as an identifier of the Complainant's business. Therefore the Panel finds the disputed domain name was registered in bad faith and is being used in bad faith, likely to create confusion among Internet users as to the source, affiliation or endorsement, which is considered bad faith under paragraph 4(b)(iv) of the Policy.
Additional inference of bad faith can be drawn under the circumstances, as privacy protection services have been used by the Respondent. Further, the Respondent has provided incomplete address details. The domain name is not being used for any purpose and is parked at the Registrar's site and has PPC links. Based on the circumstances discussed, where the Respondent has opted not to disclose his identity and more importantly, the Respondent has registered the disputed domain name which contains the Complainant's coined mark INCRED within a few days of media reports regarding the Complainant, shows on balance, that the disputed domain name has been registered in bad faith and is being used in bad faith. Passive holding the disputed domain name, under the circumstances discussed, shows it is being used in bad faith.
The Panel accordingly finds the Complainant has successfully established the third element under paragraph 4(a) of the Policy, that the disputed domain name was registered in bad faith and is being used in bad faith. 7. Decision
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, , be transferred to the Complainant.
Harini Narayanswamy
Sole Panelist
Date: August 21, 2018
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