The Complainant is Kabbage, Inc. of 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 China. 2. The Domain Name and Registrar
The disputed domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on April 11, 2019. On April 12, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 15, 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 April 18, 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 Complaint on April 19, 2019.
On April 18, 2019, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On April 19, 2019, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with the amendment to 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 April 24, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 14, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 20, 2019.
The Center appointed Jonathan Agmon as the sole panelist in this matter on May 27, 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, Kabbage, Inc., was founded in 2009 and pioneered a financial services data and technology platform to provide access to automated funding to small businesses. The Complainant leverages data generated through business activity such as accounting data, online sales, shipping, and dozens of other sources to understand performance and deliver fast, flexible funding in real time. With a large network of global-bank partnerships for an online lending platform, the Complainant powers small business lending for large banks, including ING and Santander, across Spain, the United Kingdom, Italy, and France. The Complainant is funded and backed by leading investors, including the SoftBank Vision Fund, BlueRun Ventures, Mohr Davidow Ventures, and others. The Complainant has provided more than 150,000 customers with access to more than USD 5.5 billion, including more than USD 10 million per day to up to 1,400 small businesses via its automated lending platform.
The Complainant is the owner of the following trademark registrations in United States:
- KABBAGE (Trademark No. 3905311) registered on January 11, 2011; and
- KABBAGE (Trademark No. 4682136) registered on February 3, 2015.
Further to the above trademark registrations, the Complainant owns at least 15 pending applications in the United States and four pending applications in the European Union for marks that consist of or contain the word “kabbage”.
The disputed domain name was registered on September 6, 2015 and resolves to an active monetized parking page website. 5. Parties’ Contentions A. Complainant
The Complainant’s contentions include the following:
The Complainant argues that the disputed domain name is confusingly similar to the Complainant’s registered KABBAGE mark as the disputed domain name wholly incorporate the KABBAGE trademark and the Top-Level Domain (“.com”) may be disregarded under the confusing similarity test. The Complainant also states that the addition of “www” in the disputed domain name constitutes typosquatting and does not change the overall impression of the Complainant’s mark.
The Complainant also argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name as it has not licensed or permitted the Respondent to use any its trademark or register the disputed domain name.
The Complainant further argues that the disputed domain name was registered and is being used in bad faith as the Respondent is using the disputed domain name in connection with a monetized parking page.
For all of the above reasons, the Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of Proceedings
Paragraph 11 of the Rules provides that:
“(a) Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The language of the Registration Agreement for the disputed domain name is Chinese.
The Complainant requested that the language of the proceeding be English.
The Respondent did not comment on the language of the proceeding.
The Panel cites the following with approval:
“Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case.” (See Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004).
The Panel finds that in the present case, the following should be taken into consideration upon deciding on the language of the proceeding:
(i) The disputed domain name consists of Latin letters, rather than Chinese characters;
(ii) The Complainant may be unduly disadvantaged by having to conduct the proceeding in the Chinese language;
(iii) The Respondent did not object to the Complainant’s request that English be the language of the proceeding;
(iv) the website at the disputed domain name is not in Chinese, but includes finance-related terms and appears to change based on the user’s location.
Upon considering the above, the Panel determines that English be the language of the proceeding. 6.2 Substantive Issues A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The disputed domain name integrates the Complainant’s KABBAGE trademark in its entirety (see Wal-Mart Stores, Inc. v. Kuchora, Kal,WIPO Case No. D2006-0033; Hoffmann-La Roche Inc. v. Andrew Miller,WIPO Case No. D2008-1345).
Further, the addition of the technical generic term “www” without a dot as would be normal to the Complainant’s KABBAGE trademark does not avoid confusing similarity between the Complainant’s trademark and the disputed domain name. The addition of merely descriptive terms would not prevent a finding of confusing similarity under the first element. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9.
Consequently, the Panel finds that the Complainant has shown that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
Once the Complainant establishes a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, the burden of production shifts to the Respondent to show that it has rights or legitimate interests in respect to the disputed domain name (See WIPO Overview 3.0, section 2.1).
In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and the Respondent has failed to assert any such rights or legitimate interests.
The Complainant has provided evidence that it owns trademark registrations long before the disputed domain name was registered and that it is not affiliated with nor has it licensed or otherwise permitted the Respondent to use the Complainant’s trademark (see LEGO Juris A/S v. DomainPark Ltd, David Smith, A Domain Privacy, Transure Enterprise Ltd, Host master,WIPO Case No. D2010-0138).
The Complainant also provided evidence that the Respondent is not commonly known by the disputed domain name (see WIPO Overview 3.0, section 2.3).
Further, the Respondent did not submit a Response in the present case and did not provide any explanation or evidence to show rights or legitimate interests in the disputed domain name which is sufficient to rebut the Complainant’s prima facie case.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The Complainant must also show that the Respondent registered and is using the disputed domain name in bad faith (see Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy.
The Complainant has submitted evidence, which shows that the Respondent registered the disputed domain name long after the Complainant registered its trademark. According to the evidence filed by the Complainant, the Complainant has owned registration for the KABBAGE trademark since the year 2011. In view of the evidence filed by the Complainant, and the widespread use of the KABBAGE trademark, it is suggestive of the Respondent’s bad faith in these particular circumstances that the trademark, owned by the Complainant, was registered long before the registration of the disputed domain name (see Sanofi-Aventis v. Abigail Wallace,WIPO Case No. D2009-0735).
Furthermore, the disputed domain name incorporates the Complainant’s trademark in its entirety with the addition of the technical generic term “www” but without the dot which the Panel finds is an attempt by the Respondent to confuse and/or mislead Internet users seeking or expecting the Complainant. Previous UDRP panels ruled that in such circumstances “a likelihood of confusion is presumed, and such confusion will inevitably result in the diversion of Internet traffic from the Complainant’s site to the Respondent’s site” (see E, Inc v. Triple E Holdings Limited,WIPO Case No. D2006-1095). To this end, prior UDRP panels have established that attracting Internet traffic by using a domain name that is identical or confusingly similar to a registered trademark may be evidence of bad faith under paragraph 4(b)(iv) of the UDRP.
The Complainant has submitted evidence that the disputed domain name resolves to an active monetized park page with pay-per-click links including those in the Complainant’s industry. Past panelists have found that the use of a domain name to host a parked page comprising pay-per-click 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 (see WIPO Overview 3.0, section 2.9).
In the present case, the evidence provided by the Complainant demonstrates that the sole purpose of the disputed domain name is to resolve to pay-per-click advertising websites and collect click-through revenue from advertising links while using a domain name which wholly incorporates the Complainant’s trademark KABBAGE in addition to a technical generic term “www”. The links offered on the website under the disputed domain name are all connected with the Complainant services as the links not only wholly incorporate the Complainant’s mark, but are related to small business loans, lending and credit online which are in the same commercial field as the Complainant’s business. Such use demonstrates that the Respondent has used the disputed domain name to obtain a commercial benefit (see Mpire Corporation v. Michael Frey,WIPO Case No. D2009-0258). The Panel is convinced that the Respondent is using the Complainant’s trademark without authorization for the purpose of attracting visitors which may be confused into believing, at least initially, that the disputed domain website is in some form connected or endorsed by the Complainant, when it is not (see Intel Corporation v. The Pentium Group,WIPO Case No. D2009-0273). The Respondent’s behavior is yet another indication of bad faith registration and use of the disputed domain name.
The Complainant also submitted evidence that its trademark KABBAGE is a coined term which does not have any specific meaning. KABBAGE is unique term that is a variation of the English word “cabbage”, which is unrelated to the services offered by the Complainant. As such, the Panel is of the view that the Respondent could not have registered the disputed domain name without actual prior knowledge of the Complainant’s distinctive mark, which is further indication of the Respondent’s bad faith in registering the disputed domain name.
Based on the evidence presented to the Panel, including the registration of the disputed domain name long after the registration of the Complainant’s marks, the confusing similarity between the disputed domain name and the Complainant’s marks, the Respondent’s use of the disputed domain name, and the fact that is no plausible good faith use the Respondent can put the disputed domain name to, the fact that no Response was submitted by the Respondent, the Panel draws the inference that the disputed domain name was registered 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.
Jonathan Agmon
Sole Panelist
Date: June 10, 2019
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