The Complainants are Bajaj Finserv Ltd. and Bajaj Finance Ltd., India, represented by INVENTURE IP, India.
The Respondent is Registration Private, Domains By Proxy, LLC, United States of America / Deepak Saikia, India. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”) on 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 4, 2019. On May 6, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 7, 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 10, 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 amended Complaint on May 13, 2019. In response to a clarification request by the Center, the Complainant filed an amendment to the Complaint on May 16, 2019.
The Center verified that the Complaint together with the amended Complaint and 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 of the Complaint, and the proceedings commenced on May 17, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 6, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 7, 2019.
The Center appointed Shwetasree Majumder as the sole panelist in this matter on June 17, 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 No. 1 namely Bajaj Finserv Ltd is a company incorporated under the laws of India, with its registered office at Bajaj Auto Ltd Complex, Mumbai- Pune Road, Akurdi, Pune 411035.
The Complainant No. 2, Bajaj Finance Ltd., is a subsidiary company of the Complainant No.1 incorporated under the laws of India on March 25, 1987, with its registered office at Bajaj Auto Ltd Complex, Mumbai- Pune Road, Akurdi, Pune 411035.
The Complainants are a part of the Bajaj Group of industries, founded in India in 1926.
The Complainant No. 1 claims to be the holding company for the various financial services businesses under the Bajaj group. The Complainant No. 2 claims to be a highly reputed deposit accepting Non-Banking Financial Institution rendering financial services to different segments of customers by providing loans to eligible (i) retail customers for the purchase of products such as two wheelers, consumer durables, digital products and life style products and to (ii) corporate and rural segment customers by facilitating SME lending, commercial lending, rural lending.
The Complainant No. 1 is the registered owner and proprietor of the trademarks BAJAJ FINSERV (registration no. 1827471, in Class 36, registered on June 10, 2009), B logo (registration no. 1959566, in Class 36, registered on May 3, 2010) and B (Logo) BAJAJ FINSERV LOANS (registration no. 1992364, in Class 36, registered on July 13, 2010) in India. Copies of Registration Certificates for the said marks have been attached as Annex D to the Complaint. The Complainant No. 2 claims to have been authorised to use the said marks by the Complainant No. 1, although no proof of the same is filed.
The website of the Complainants is hosted on the domain (registered in the name of the Complainant No. 2) which prominently features the trademark BAJAJ FINSERV. The said website is accessible to Internet users and in addition to providing information about the Complainants’ business and services also enables customers to know their insurance policy status, pay their premium online, repay their loans, etc. Few extracts from the Complainants’ website have been attached as Annex G to the Complaint.
The Complainants own several domain names which incorporate the mark BAJAJ FINSERV in its entirety such as , , , , , to name a few. A list of domain names comprising the mark BAJAJ FINSERV owned by the Complainants have been attached as Annex E to the Complaint and WhoIs extracts for some of the said domain name registrations have been attached as Annex F to the Complaint.
The Respondent has registered the disputed domain name on January 9, 2019, according to the Registrar’s WhoIs records. The WhoIs search results for the disputed domain name were attached as Annex A1 to the Complaint. The disputed domain name resolves to a pay-per-click (“PPC”) site with links that offer insurance and financial services. 5. Parties’ Contentions A. Complainant
The Complainants state that their trademark and name have been derived from the personal name of their founder, Shri Jamnalal Bajaj. The Complainants contend that they are a part of the Bajaj Group of industries, founded in 1926 and that they have acquired rights in the BAJAJ name and mark through long and extensive use, prior adoption and by securing trademark and domain name registrations for BAJAJ formative names, including BAJAJ FINSERV, BAJAJ FINSERV LOANS. The Complainants point out that the date of registration of the said trademarks pre-date the date of registration of the disputed domain name on January 9, 2019. It is further stated by the Complainants that their domain name has been registered in the name of the Complainant No. 2 on July 11, 2007, which is prior to the registration of the disputed domain name by the Respondent.
The Complainants contend that the disputed domain name completely incorporates and subsumes the Complainants’ trademark and name BAJAJ FINSERV and that the ‘overall impression’ left by the disputed domain name suggests that it belongs to the Complainants and therefore consumer confusion will inevitably result.
The Complainants state that there can be no plausible reason or explanation for the Respondent to have subsequently adopted the disputed domain name involving the Complainants’ prior well-known name and trademark BAJAJ FINSERV. The Complainants contend that the mere addition of the letter “e” to “serv”, the word “care” and the generic Top-Level Domain (“gTLD”) “.com” does not detract from the overall impression of the disputed domain name. The Complainants therefore assert that the disputed domain name is identical or confusingly similar to the trademark / service mark BAJAJ FINSERV in which the Complainants have registered and common law rights.
The Complainants further state that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainants point out that the Respondent is not commonly known by the name “Bajaj” (an Indian surname) and there could have been no reason for the Respondent to have adopted said name / trademark. The Complainants argue that the Respondent is not connected with the Complainants in any manner whatsoever nor does the Respondent conduct any business under the name / trademark BAJAJ FINSERV.
The Complainants contend that they have not authorized or licensed the Respondent to apply for, register, use or offer for sale the disputed domain name and that there is no use or demonstrable preparations to use the disputed domain name or a name corresponding to the disputed domain name by the Respondent in connection with a bona fide offering of goods or services. The Complainants point out that the Respondent is not involved in making a legitimate noncommercial or fair use of the disputed domain name without an intention for commercial gain by misleadingly diverting consumers or tarnishing the trademark / service mark of the Complainants at issue.
The Complainants contend that the disputed domain name was registered and is being used in bad faith. The Complainants state that the disputed domain name comprises the words “bajaj” and “finserv”, “bajaj” being an Indian surname and “finserv”, being a combination of financial and service that is coined by them. The Complainants argue that “serv” is not the dictionary spelling of serve or service. It therefore points out that there can be no possible bona fide interest of the Respondent in the disputed domain name.
The Complainants state that the Respondent’s use of the disputed domain name is much subsequent to the Complainants’ adoption and use of its trademarks and domain names for “bajajfinserv”. The Complainants argue that the given the well-known status of the Complainants’ name and trademarks, the Respondents’ adoption and use of the disputed domain name is in bad faith and has been done only to derive benefit enduring to the Complainants in their trademarks/domain names. The Complainants point out that the Respondent’s registration of the disputed domain name as has been held by previous UDRP panels amounts to opportunistic bad faith registration as it is aimed at falsely creating an impression that the Respondent’s business is associated, sponsored, affiliated or endorsed by the Complainants.
The Complainants further state that the intention of bad faith on the part of the Respondent as regards the registration of the disputed domain name is clearly evident from the fact that no response was received to the legal notice dated January 17, 2019 as was addressed to him by the Complainants. The Complainants place reliance on their legal notice dated January 17, 2019, a copy of which has been attached as Annex J to the Complaint.
The Complainants contend that the name of the Respondent is Deepak Saikia and “bajaj” does not feature as a part of his name. The Complainant points out that the Respondent is based in India where the Complainants are also located and where they have widespread business activities and enjoy strong public recognition in their BAJAJ name/ trademark. The Complainants point out that the email address of the Respondent – “care.money.bazaar@[...].com” indicates that he too is engaged in financial service business, same as that of the Complainants.
The Complainants lastly argue that the conduct of the Respondent constitutes cybersquatting. The Complainant state that the Respondent has absolutely no rights or legitimate interest in the disputed domain name and the same has been adopted and is being used by the Respondent only in reference to the Complainants’ well-known BAJAJ name and trademark and is therefore in bad faith. B. Respondent
The Respondent did not reply to the Complainants’ contentions. 6. Discussion and Findings
The Respondent did not file any response. However, as set out in section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the consensus view of UDRP panels is that the respondent’s default does not automatically result in a decision in favour of the complainant. The Complainants must still establish each of the three elements required by paragraph 4(a) of the Policy:
Under the Policy, the Complainants must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have 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. A. Identical or Confusingly Similar:
Paragraph 4(a)(i) of the Policy requires the Complainants to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights. A trademark registration provides a clear indication that the rights in the trademark belong to its respective owner. The Panel finds that the Complainants have provided more than satisfactory evidence of their rights in the BAJAJ FINSERV and BAJAJ FINSERV LOANS trademarks on the basis of their numerous trademark registrations for the same in India which pre-date the date of registration of the disputed domain name on January 9, 2019.
Regarding the mark BAJAJ FINSERV itself, the Panel notes that although “Bajaj” is admittedly a common surname in India, the composite word “Bajaj finserv” is sufficiently distinct to qualify as a coined trademark, since “finserv”by itself is an abbreviation of the two words “financial” and “service” and does not appear anywhere in this combination. Further, the combination “Bajaj finserv” as a whole is clearly a trademark that has been granted statutory protection.
The Panel observes that the disputed domain name completely incorporates and subsumes the trademark BAJAJ FINSERV. The use of “e” after “serve” and the addition of the suffix “care” do not sufficiently distinguish the Respondent’s disputed domain name from the Complainants’ trademarks.
Previous UDRP decisions have recognized that incorporating a trademark in its entirety is sufficient to establish that a domain name is identical or confusingly similar to a registered trademark. See, Aldermore Bank Plc v. Hildegard Gruener,WIPO Case No. D2016-1617; Oki Data Americas, Inc. v. the ASD, Inc.,WIPO Case No. D2001-0903; Go D, Inc. v. Shoneye’s Enterprise, WIPO Case No. D2007-1090; and Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525.
The disputed domain name is confusingly similar to the Complainants’ registered trademark BAJAJ FINSERV.
It has been well accepted amongst UDRP panels that a gTLD, such as “.com”, is to be typically ignored when assessing whether a domain name is identical or confusing similar to a trademark in which the Complainant has rights. See, Rolls-Royce plc v. John Holt,WIPO Case No. D2017-1842; Carrefour v. Saidoun Noira,WIPO Case No. D2018-2580; and Sanofi v. Tyesha Hirthe,WIPO Case No. D2018-1339.
In the said backdrop, the Panel concludes that the disputed domain name is confusingly similar to the Complainants’ registered and well-known trademark, BAJAJ FINSERV. The Panel accordingly finds that the requirement of paragraph 4(a)(i) of the Policy thus stands satisfied. B. Rights or Legitimate Interests:
Under paragraph 4(c) of the Policy, any of the following circumstances, if found by the Panel, may demonstrate the Respondent’s rights or legitimate interests in the disputed domain name:
(i) before any notice to him of the dispute, the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent has been commonly known by the disputed domain name, even if he has acquired no trademarks or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The consensus view of UDRP panels on the burden of proof under paragraph 4(a)(ii) of the Policy has been summarized in section 2.1 of the WIPO Overview 3.0, which states: “[…] where a Complainant makes out a prima facie case that the Respondent lacks rights or legitimate interests, the burden of production on this element shifts to the Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the Respondent fails to come forward with such relevant evidence, the Complainant is deemed to have satisfied the second element”.
Given that the Respondent was duly notified of the Complaint and has chosen not to rebut it on merits, the Panel draws an adverse inference against the Respondent with respect to the allegations made by the Complainant, from the silence of the Respondent (See, Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009). However, the Panel has carefully reviewed the record and is independently convinced that the Complainants have established a prima facie showing under paragraph 4(a)(ii) of the Policy.
The Panel further finds no material independently subsisting in favour of the Respondent that would entitle him to claim any of the safeguards spelled out in paragraph 4(c) of the Policy. The Panel has, on the basis of material produced by the Complainant, arrived at the following conclusions:
I The Complainants have established that they are a part of the Bajaj Group of industries which has been carrying on business under the name “Bajaj” since the year 1926. The Complainants have also effectively demonstrated that they are the registered proprietor and owner of the BAJAJ FINSERV, and BAJAJ FINSERV LOANS trademarks, rights in respect of which have accrued in the Complainants’ favour, long prior to the Respondent’s registration of the disputed domain name on January 9, 2019. Likewise, the Complainants also have domain registrations comprising their trademark BAJAJ FINSERV which pre-date the date of registration of the disputed domain name by the Respondent.
II The Respondent’s name as per the information disclosed by the Registrar is Deepak Saikia and is not commonly known by the name “Bajaj”. There was no plausible reason or explanation for the Respondent to have adopted the Complainants’ registered trademark BAJAJ FINSERV as a part of the disputed domain name.
III The Complainants have established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, in view of the Respondent not having any registered trademarks or trade name corresponding to the disputed domain name. The Respondent does not have any rights in the BAJAJ FINSERV trademarks that can be established by common use.
IV The Panel observes that the disputed domain name resolves to a PPC site with links that offer insurance and financial services. The use of the disputed domain name to host a PPC site containing links that compete with or capitalize on the reputation and goodwill of the Complainants’ trademarks or otherwise mislead Internet users does not constitute a bona fide offering of goods and services (see section 2.9 of the WIPO Overview 3.0). Further, the Respondent, in the opinion of the Panel, is a cybersquatter who has registered the disputed domain name only to confuse Internet users by taking advantage of the goodwill and reputation associated with the Complainants’ BAJAJ FINSERV trademarks.
V The Panel finds no evidence of use or demonstrable preparations to use the disputed domain name or a name corresponding to the disputed domain name by the Respondent in connection with a bona fide offering of goods or services that would warrant the registration of the disputed domain name (paragraph 4(c)(i) of the Policy). The Respondent further has not been found by the Panel to be making a legitimate noncommercial or fair use of the disputed domain name (paragraph 4(c)(iii) of the Policy).
Accordingly, the Panel finds the Complainants have satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith:
According to the Policy, bad faith is understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant’s mark (see section 3.1 of the WIPO Overview 3.0). According to section 3.1.4 of the WIPO Overview 3.0, the mere registration of a domain name that is identical to a registered and widely known trademark, by an unaffiliated entity can itself create a presumption of bad faith. UDRP panels have consistently found that it ought to be presumed that the Respondent should have known of the Complainants’ trademark if it is shown to be in wide use on the Internet or otherwise (see Research In Motion Limited v. Privacy Locked LLC/Nat Collicot,WIPO Case No. D2009-0320; and The Gap, Inc. v. Deng Youqian,WIPO Case No. D2009-0113).
In the backdrop of the Complainants’ extensive use, widespread business and numerous trademark registrations in India, coupled with the fact that the Respondent and the Complainant are both located in India, the Panel finds it clear that the Respondent ought to have constructive notice of the rights of the Complainants in their registered and reputed BAJAJ FINSERV trademarks at the time of registration of the disputed domain name.
The Complainants’ domain name consists of the words “bajaj” and “finserv”. Bajaj is the name of the founder of the Bajaj Group of industries which is also an Indian surname while “finserv” is a combination of “financial” and “service”. The Panel notes that while on one hand, the name of the Respondent is Deepak Saikia wherein “Bajaj” does not feature as part of his name, “serv” on the other is not the dictionary spelling of “serve” or “service”. The Panel therefore concludes there can be no possible bona fide use of the disputed domain name.
The Panel also takes note that the Complainants own several domain names which incorporate their registered trademark BAJAJ FINSERV in its entirety such as , , , , , . Specifically, the Panel observes that the Complainants’ website, hosted on the domain name is targeting Internet users in India from where the Respondent, Deepak Saikia is believed to originate. On a perusal of Annex F of the Complaint, the Panel finds that the said domain name was registered in favour of the Complainant No. 2 on July 11, 2007 much prior to registration of the disputed domain name by the Respondent.
It is apparent that the disputed domain name has been registered only to derive benefit from or create an impression that the Respondent’s business is associated, sponsored, affiliated or endorsed by the Complainants, which is false and misleading. The Panel observes that the Respondent’s email address is “care.money.bazaar@[...].com” which suggests that he is engaged in the financial service business like the Complainants.
The Panel finds that the instant case is a clear example of cybersquatting as the disputed domain name resolves to a PPC site with links that offer insurance and financial services. The Panel concludes that the Respondent has absolutely no rights or legitimate interests in the disputed domain name, and that the same has been adopted and is being used by the Respondent only in reference to the Complainants’ trademarks BAJAJ FINSERV, and BAJAJ FINSERV LOANS, in bad faith.
Lastly the Respondent, at the time of filing of the Complaint, had employed a privacy service to hide his identity. The Panel finds that the Respondent’s use of a privacy or proxy service which may be used to block or intentionally delay disclosure of the identity of the actual underlying registrant supports an inference of bad faith. The Panel finds the said view to be consistent with previous UDRP panel decisions (see BME, LLC. v. Gregory Ricks / Gee Whiz Domains Privacy Service,WIPO Case No. D2008-0882; The Uder Company Pty Ltd and Stay In Bed Milk & Bread Pty Ltd (trading as Aussie Farmers Direct) v. PrivacyP, Domain Admin, ID # 10760,WIPO Case No. D2012-0924 and cases cited therein) and WIPO Overview 3.0, section 3.6.
Accordingly, having regard to the circumstances of this particular case, the Panel holds that the Complainants have discharged the burden of proof under paragraph 4(a)(iii) 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 Complainants.
Shwetasree Majumder
Sole Panelist
Date: July 16, 2019.
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