The Complainant is Kabbage, Inc., United States of America (“United States”), represented by The GigaLaw, Douglas M. Isenberg, Attorney at Law, LLC, United States.
The Respondent is Name Redacted.1 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 20, 2020. On January 21, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 22, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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 January 29, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 18, 2020. The Center received an email communication from the person named in the Complaint, alleging that its name and contact information were used without authorization in the registration of the disputed domain name. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 19, 2020. The Center appointed William R. Towns as the sole panelist in this matter on February 25, 2020. 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 services company, founded in 2009, and headquartered in Atlanta, Georgia, United States. The Complainant operates a financial services data and technology platform offering automated loans and financial services to businesses. According to the Complainant, it has provided more than 200,000 customers with access to more than USD 8 billion, including more than USD 13 million per day to up to 1,900 small businesses via its automated lending platform. The Complainant owns trademark registrations for the KABBAGE mark issued by the United States Patent and Trademark Office (“USPTO”), including the following: United States Registration No. 3,905,311, applied for on September 13, 2009, and registered on January 11, 2011; and United States Registration No. 4,682,136, applied for on July 6, 2014, and registered on February 3, 2015 (first use of the mark in commerce on June 30, 2010). The Complainant is also the holder of the domain name The Respondent registered the disputed domain name on February 19, 2019. The disputed domain name at present resolves to a parking page provided by the Registrar GoDaddy including “related links” to business, financial, and capital loans and investment management. The Complainant has provided evidence of the Respondent’s use of the disputed domain name with a website impersonating the Complainant and fraudulently offering business loans under the name “Kabbage Group, Inc.” According to the Complainant, the Respondent’s fraudulent loan activities have been reported to law enforcement authorities by persons who the Respondent sought to victimize. 5. Parties Contentions A. Complainant The Complainant submits that the disputed domain name is confusingly similar to the Complainant’s KABBAGE mark. The Complainant explains that the relevant comparison to be made is with the second-level portion of the disputed domain name, and that the generic Top-Level Domain Name (“gTLD”) “.com” is disregarded for this purpose. The Complainant maintains that its KABBAGE mark is recognizable in the disputed domain name, and as such sufficient to establish identity or confusing similarity for purposes of UDRP standing. The Complainant further observes that the inclusion of the words “group” and “inc” in the disputed domain name does not serve to distinguish the disputed domain name from the Complainant’s trademark. The Complainant maintains that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant avers that the Respondent has not been assigned, granted, licensed, sold, transferred or in any way authorized to register or use the Complainant’s KABBAGE mark. The Complainant observes that the Respondent has not been commonly known by the disputed domain name. The Complainant submits that the Respondent has not used or made demonstrable preparation to use the disputed domain name in connection with a bona fide offering of goods or services, and has not made any legitimate noncommercial or other fair use of the disputed domain name. The Respondent further maintains that the Respondent instead has used the disputed domain name to impersonate the Complainant and engage in fraudulent loan offers. The Complainant represents that the Respondent registered and has used the disputed domain name in bad faith. The Complainant emphasizes that its KABBAGE mark, registered and used in commerce for almost 10 years, has provided more than USD 8 billion in loans to over 200,000 customers in the United States, Spain, the United Kingdom, Italy, and France. The Complainant contends that the Respondent could not have been unaware of the Complainant’s mark when registering the disputed domain name, given the fame of the Complainant’s mark. The Complainant reiterates that the disputed domain name has been used by the Respondent to impersonate the Complainant in order to engage in fraudulent loan offers. The Complainant maintains that the Respondent specifically targeted the Complainant’s KABBAGE mark in order to mislead and divert Internet users searching for the Complainant’s product to the Respondent’s website. The Complainant submits, given the disputed domain name’s obvious connection with the Complainant, that the Respondent’s actions reflect opportunistic bad faith in violation of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Scope of the Policy The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store,WIPO Case No. D2002-0774. Accordingly, the jurisdiction of this Panel is limited to providing a remedy in cases of “the abusive registration of domain names”, also known as “cybersquatting”. Weber-Stephen Products Co. v. Armitage Hardware,WIPO Case No. D2000-0187. See Final Report of the First WIPO Internet Domain Name Process, April 30, 1999, paragraphs 169-177. The term “cybersquatting” is most frequently used to describe the deliberate, bad faith abusive registration of a domain name in violation of rights in trademarks or service marks. Id. at paragraph 170. Paragraph 15(a) of the Rules provides that the panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the panel deems applicable. Paragraph 4(a) of the Policy requires that the complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred: (i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the respondent has no rights or legitimate interests with respect to the domain name; and (iii) the domain name has been registered and is being used in bad faith. Cancellation or transfer of the domain name is the sole remedy provided to the complainant under the Policy, as set forth in paragraph 4(i). Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a domain name is deemed to be in bad faith, but does not limit a finding of bad faith to only these situations. Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in a domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily, if not exclusively, within the knowledge of the respondent. Thus, the view is that the burden of production shifts to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270. B. Identical or Confusingly Similar The Panel finds that the disputed domain name The Complainant’s KABBAGE mark is clearly recognizable in the disputed domain name.3 The inclusion of the descriptive terms “group” and “inc” in the disputed domain name does not serve to dispel the confusing similarity of the disputed domain name to the Complainant’s mark. When the relevant trademark is recognizable in the disputed domain name the addition of other terms, whether descriptive, geographical, pejorative, meaningless, or otherwise, does not preclude a finding of confusing similarity under paragraph 4(a)(i) of the Policy.4 gTLDs generally are disregarded when evaluating the identity or confusing similarity of the Complainant’s mark to the disputed domain name under paragraph 4(a)(i) of the Policy, irrespective of any ordinary meaning that might be ascribed to the gTLD.5 Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests As noted above, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of rights or legitimate interests in a domain name. The Panel is persuaded from the record of this case that a prima facie showing under paragraph 4(a)(ii) of the Policy has been made. It is undisputed that the Respondent has not been authorized to use the Complainant’s KABBAGE mark. The record reflects that the Respondent registered and has used the disputed domain name to impersonate the Complainant in what appears to be an attempt to illicitly profit from a fraudulent loan scheme. Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights or legitimate interests in a domain name by demonstrating any of the following: (i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the 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 domain name, even if it has acquired no trademark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The Respondent has not submitted a response to the Complaint, in the absence of which the Panel may accept all reasonable inferences and allegations in the Complaint as true. See Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009. The Panel has carefully reviewed the record in this case, and finds nothing therein that would bring the Respondent’s registration and use of the disputed domain name within any of the “safe harbors” of paragraph 4(c) of the Policy. It is evident that the Respondent was aware of the Complainant and the Complainant’s KABBAGE mark when registering the disputed domain name. The record indicates that the Respondent registered the disputed domain name with the aim of exploiting and profiting from the Complainant’s mark, through the impersonation of the Complainant and the use of the disputed domain name in furtherance of a fraudulent scheme. Having regard to all of the relevant circumstances in this case, and in the absence of any explanation by the Respondent, the Panel concludes that the Respondent has not used or demonstrated preparations to use the disputed domain name in connection with a bona fide offering of goods or services, and that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. Further, there is no indication that the Respondent has been commonly known by the disputed domain name within the meaning of paragraph 4(c)(ii) of the Policy. In short, nothing in the record before the Panel supports a finding of the Respondent’s rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) circumstances indicating that the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) circumstances indicating that the respondent is using the domain name to intentionally attempt 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 its website or location. The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of another. See Match.com, LP v. Bill Zag and NWLAWS.ORG,WIPO Case No. D2004-0230. For the reasons discussed under this and the preceding heading, the Panel considers that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain name within the meaning of paragraph 4(a)(iii) of the Policy. The Panel concludes that the Respondent was aware of the Complainant and had the Complainant’s KABBAGE mark in mind when registering the disputed domain name. The Respondent’s registration of the disputed domain name in the attendant circumstances smacks of opportunistic bad faith. It is clear from the record that the Respondent’s motive in relation to the registration and use of the disputed domain name was to capitalize on the Complainant’s trademark rights by creating a likelihood of confusion with the Complainant’s mark, with the ultimate aim to profit illicitly therefrom. Accordingly, the Panel finds that the Complainant has satisfied the requirements of 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 William R. Towns 1 The Respondent has fraudulently impersonated the Complainant, and provided false or fictitious contact information when registering the disputed domain name. It appears from the record that the Respondent registered the disputed domain name in another person’s name in order to conceal the Respondent’s identity. In light of this, the Panel believes that no purpose can be served by including the named Respondent in this Decision, and has therefore redacted the Respondent’s name from the caption and body of this Decision. The Panel has, however, attached as Annex 1 to this Decision an instruction to the Registrar regarding the transfer of the disputed domain name that includes the named Respondent, and has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding. The Panel has further directed the Center, pursuant to paragraph 4(j) of the Policy and paragraph 16(b) of the Rules, that Annex 1 to this Decision shall not be published due to exceptional circumstances. See Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted,WIPO Case No. D2009-1788. 2 See WIPO Overview 3.0, section 1.7. 2 See WIPO Overview 3.0, section 1.8 and cases cited therein. 4 Id. 5 See WIPO Overview 3.0, section 1.11. The meaning of a particular TLD, however, may in some cases be relevant to assessments under paragraphs 4(a)(ii) and 4(a)(iii) of the Policy. See WIPO Overview 3.0, sections 1.11.2, 2.14, and cases cited therein. See also WIPO Overview 3.0, section 1.8.
Sole Panelist
Date: March 9, 2020
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