The Complainant is Kabbage, Inc. of Atlanta, Georgia, United States of America (“United States”), represented by The GigaLaw, Douglas M. Isenberg, Attorney at Law, LLC, United States.
The Respondent is Zhang Dong Xiang of Hangzhou, China, self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on February 8, 2019. On February 8, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 12, 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 February 13, 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 the same day.
On February 13, 2019, the Center sent 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 February 15, 2019. The Respondent requested that Chinese be the language of the proceeding on February 21, 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 February 20, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 12, 2019. Other than the Respondent’s email of February 21, 2019 in Chinese requesting that Chinese be the language of the proceeding, the Respondent did not submit further communications. Accordingly, on March 13, 2019, the Center notified the Parties that it would proceed with panel appointment.
The Center appointed Rachel Tan as the sole panelist in this matter on March 19, 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. 4. Factual Background
The Complainant is an online financial technology company based in Atlanta, Georgia, United States. Through an automated lending platform, the Complainant provides funding directly to small businesses and consumers.
The Complainant owns trade mark registrations for KABBAGE, including United States Registration No. 3,905,311 for KABBAGE, registered on January 11, 2011 and United States Registration No. 4,682,136 for KABBAGE, registered on February 3, 2015. Both registrations cover financial services in class 36.
The Complainant owns several domain names including , registered on September 7, 2006.
The disputed domain name was registered on June 27, 2015 by the Respondent, “Zhang Dong Xiang”, apparently a Chinese individual. The disputed domain name currently resolves to a pay-per-click website with links to credit card and loan services under headings such as “Small Business Line of Credit”, “Business Lending Loans” and “Business Loan For”. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to its prior KABBAGE trade mark and domain name. The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to use the KABBAGE trade mark in any manner, nor to own and use the disputed domain name. No business relationship exists between the parties and the disputed domain name is not used in connection with a bona fide offering of goods or services. The Complainant further contends that the disputed domain name was registered and is being used in bad faith. The Respondent chose the disputed domain name with knowledge of the Complainant’s activities and is using it to divert customers to its monetized parking page for commercial gain. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
Initially, the Panel must address the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the administrative proceeding shall be the language of the Registration Agreement unless otherwise agreed by the parties, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the administrative proceeding. The panel may choose to write a decision in either language, or request translation of either party’s submissions.
In this case, the Registrar has confirmed to the Center that the language of the Registration Agreement is Chinese. However, the Complainant has requested that English be adopted as the language of the proceeding.
The Center proceeded to issue its case-related communications to the Parties in both English and Chinese. The Center decided to accept the Complaint as filed in English, accept a Response in either English or Chinese, and appoint a Panel familiar with both languages.
It is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Panel having considered the circumstances finds that English shall be the language of this proceeding. The reasons are set out below:
(a) The Complainant is a company based in the United States. Requiring the Complainant to submit documents in Chinese would lead to delay and cause the Complainant to incur in translation expenses; and
(b) The disputed domain name is comprised of Latin characters and currently resolves to websites in the English language which indicates a level of comprehension of the language.
The Complaint has been submitted in English. All of the Centre’s case-related communications to the Parties have been transmitted in both English and Chinese. The Respondent has been informed by the Center that it would accept a Response in either English or Chinese. No foreseeable procedural benefit may be served by requiring Chinese to be the language of the proceeding. On the other hand, the proceeding may proceed expeditiously in English. 6.2. Substantive Issues
On the basis of the facts and evidence introduced by the Complainant, and with regard to paragraphs 4(a), (b) and (c) of the Policy, the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel finds that the Complainant has submitted sufficient evidence to demonstrate its registered rights in trade marks consisting of the term KABBAGE.
The disputed domain name is virtually identical to the Complainant’s KABBAGE trade mark but for the addition of the letter “b” in the middle of the word. This common misspelling of the Complainant’s KABBAGE trade mark is derived from the kind of typing errors easily made by Internet users. “This is clearly a ‘typosquatting’ case where the disputed domain name is a slight misspelling of a registered trademark to divert Internet traffic”. See E, Inc. v. Digi Real Estate Foundation,WIPO Case No. D2006-1043 ().
The addition of “.com”, a generic Top-Level Domain (“gTLD”), is a technical requirement of every domain name registration that can be disregarded.
Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s KABBAGE trade mark. Accordingly, the Complainant has satisfied the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
In circumstances where the Complainant possesses exclusive rights to the KABBAGE trade mark whereas the Respondent seems to have no trade mark rights, the Panel is satisfied that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and the burden of production shifts to the Respondent. See International Hospitality Management - IHM S.p.A. v. Enrico Callegari Ecostudio,WIPO Case No. D2002-0683.
The disputed domain name resolves to a website displaying advertisements for loans and credit services that further link to third party financial institution websites.
Section 2.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) provides:
“Applying UDRP paragraph 4(c), panels have found that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users.
[…]
Panels have recognized that the use of a domain name to host a page comprising PPC links would be permissible – and therefore consistent with respondent rights or legitimate interests under the UDRP – where the domain name consists of an actual dictionary word(s) or phrase and is used to host PPC links genuinely related to the dictionary meaning of the word(s) or phrase comprising the domain name, and not to trade off the complainant’s (or its competitor’s) trademark.”
In the present case, the Respondent has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Policy, nor of any other circumstances giving rise to rights or legitimate interests in the disputed domain names. Considering the reputation of the Complainant in the financial services industry, the use of the disputed domain name to host a parked page of pay-per-click links that compete with and capitalize on the reputation of KABBAGE trade mark, does not represent a bona fide offering of services. Moreover, “Kabbage” is a coined word with no dictionary meaning. These facts lead the Panel to infer that the Respondent adopted the disputed domain name in order to trade off the reputation and goodwill of the Complainant’s trade mark.
The Panel thus concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain names. C. Registered and Used in Bad Faith
The Complainant’s KABBAGE trade mark has been used as far back as 2009 and registered for more than eight years. The disputed domain name was registered well after the first registration of the Complainant’s KABBAGE trade mark and domain name.
The Respondent, “Zhang Dong Xiang”, is apparently an individual residing in China. The term “kabbbage” has no meaning in the Chinese language or other apparent meaning besides being a misspelling of the Complainant’s KABBAGE trade mark. The disputed domain name redirects to a parked page with paid links to advertisements for third party financial services in the English and Chinese languages. The links bear headings such as “Small Business Line of Credit” and “Business Lending Loans”. The nature of the services offered on this website indicates that the Respondent had full knowledge of the Complainant’s trade mark and services. By deliberately registering a domain name which is confusingly similar to the Complainant’s trade mark, the Respondent is using the disputed domain name to attract Internet users who wrongly type the Complainant’s domain name to the website of competitors for financial benefit. The Panel is satisfied that the Respondent has “intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.” See paragraph 4(b)(iv) of the Policy.
Based on the above facts, it is implausible to contemplate of any good faith use to which the disputed domain name may be put by the Respondent.
Taking into account all the circumstances of the case, the Panel finds that the Respondent must have known of the Complainant before registering the disputed domain name, and the acts of the Respondent lead the Panel to conclude that the disputed domain name was registered and is being used in bad faith.
Accordingly, the Panel concludes that the Complainant has satisfied the third element under paragraph 4(a) of the Policy. 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.
Rachel Tan
Sole Panelist
Date: April 1, 2019
Full & Egal Universal Law Academy