Kabbage, Inc. v. Zhichao Yang
Claim Number: FA1504001617298
Complainant is Kabbage, Inc. (“Complainant”), represented by Brian Auerbach of Muskin & Farmer LLC, Pennsylvania, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <kababge.com>, <cabagge.com>, <kanbage.com>, and <kappage.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 30, 2015; the Forum received payment on April 30, 2015.
On April 30, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kababge.com>, <cabagge.com>, <kanbage.com>, and <kappage.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 1, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 21, 2015 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@kababge.com, postmaster@cabagge.com, postmaster@kanbage.com, postmaster@kappage.com. Also on May 1, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On May 29, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
(i) Complainant has registered the KABBAGE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,905,311, registered Jan. 1, 2011). The mark is used on or in connection with the sale of financial services in the field of online merchants. The <kababge.com>, <cabagge.com>, <kanbage.com>, and <kappage.com> domain names are confusingly similar to the KABBAGE mark because each domain name capitalizes on common misspellings and homonyms and adds the generic top-level domain (“gTLD”) “.com.”
(ii) Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known as the disputed domain names, nor is Respondent a licensee of Complainant. Further, Respondent is using the domain names in an attempt to pass itself off as Complainant.
(iii) Respondent has engaged in bad faith registration and use. Respondent has engaged in a pattern of bad faith registrations, is disrupting Complainant’s business, and is attempting to commercially profit from a likelihood of confusion. Also, Respondent is typosquatting in bad faith and had actual knowledge of Complainant’s rights in the KABBAGE mark.
B. Respondent
Respondent did not submit a timely response. The Panel notes that <kababge.com> domain name was registered on June 25, 2013, and <cabagge.com>, <kanbage.com>, and <kappage.com> domain names were registered on July 9, 2013.
Complainant established that it had rights in the mark contained in the disputed domain names. Each of the disputed domain names is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain names.
Respondent registered and used the disputed domain names in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant argues that the <kababge.com>, <cabagge.com>, <kanbage.com>, and <kappage.com> domain names are confusingly similar to the KABBAGE mark because each domain name capitalizes on common misspellings and homonyms and adds the generic top-level domain (“gTLD”) “.com.” The <kababge.com> domain name transposes the letters “a” and “b” at the end of the KABBAGE mark; the <cabagge.com> domain name misspells the mark by substituting “c” for “k”; the <kanbage.com> domain name substitutes “n” for “b” in the mark; and the <kappage.com> domain name substitutes “p” for both uses of “b” in the mark. As a general rule, a gTLD can never distinguish a domain name from the mark at issue. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Prior panels have also found domain names to be confusingly similar to the mark at issue where the domain name contains misspellings of the mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); Pearl Jam, A Gen. P’ship v. Lyn, FA 221238 (Nat. Arb. Forum Feb. 16, 2004) (finding that merely transposing the elements of a mark in a domain name, in this case PEARL JAM in the <jampearl.com> domain name, does not avoid a finding of confusing similarity under Policy ¶ 4(a)(i)); Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (holding that the respondent’s disputed domain names were confusingly similar to the complainant’s mark because the disputed domain names were common misspellings of the mark involving keys that were adjacent to the current keys comprising the complainant’s mark). Thus, as the Panel finds that Respondent has registered domain names with such spelling errors, it finds that each of the disputed domain names is confusingly similar to the KABBAGE mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant asserts that Respondent is not commonly known as the disputed domain names, nor is Respondent in possession of licensing rights that would allow him to use the KABBAGE mark in domain names. The Panel notes that “Zhichao Yang” is listed as the registrant of record for the disputed domain names. The Panel also notes that the record is void of any evidence to indicate that Respondent is either commonly known as the disputed domain names or in possession of licensing rights. Where such a void exists, Respondent cannot have rights or legitimate interests under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant argues that Respondent’s use of the <kababge.com>, <cabagge.com>, <kanbage.com>, and <kappage.com> domain names fails to consist of a bona fide offering of goods or services or a legitimate noncommercial or fair use. While Complainant does not specifically mention an attempt by Respondent to pass itself off as Complainant, the Panel infers such an argument from Complainant’s assertion that “the offending domain names redirect to an identical copy of Complainant’s website.” Complainant has provided copies of the webpages that resolve from each of the disputed domain names (see Compl., at Attached Ex. 5-8), as well as a copy of its own website at the <kabbage.com> domain name (see Compl., at Attached Ex. 4). Prior panels have found that an attempt by the respondent to pass itself off as the complainant cannot give the respondent rights under Policy ¶¶ 4(c)(i) or (iii). See Nokia Corp. v. Eagle, FA 1125685 (Nat. Arb. Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). As the Panel finds that Respondent is attempting to pass itself off as Complainant, it declines to award Respondent rights under Policy ¶¶ 4(c)(i) or (iii), respectively.
Complainant argues that Respondent has engaged in bad faith registration and use. Complainant argues that Respondent has displayed bad faith under Policy ¶ 4(b)(ii) by engaging in a pattern of bad faith registrations. Complainant has provided a long list of UDRP disputes to which Respondent was a party and had a decision entered against it. See Compl., at Attached Ex. 17. Prior panels have found that prior UDRP proceedings are sufficient to show that a respondent has engaged in bad faith registration. See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations). Thus, the Panel finds that Respondent has demonstrated bad faith under Policy ¶ 4(b)(ii).
Complainant argues that Respondent has displayed bad faith under Policy ¶ 4(b)(iii) by disrupting Complainant’s business. Complainant argues that Respondent’s only purpose for registering the disputed domain names was to obtain advertising revenue for itself or for a third party. Prior panels have not been willing to find Policy ¶ 4(b)(iii) bad faith unless the complainant and the respondent compete in some manner or the respondent was intending to divert revenue meant for the complainant. See Gorstew Ltd. & Unique Vacations v. Twinsburg Travel, FA 94944 (Nat. Arb. Forum July 7, 2000) (finding no bad faith under Policy ¶ 4(b)(iii) because the respondent and the complainant are not truly competitors); see also Chestnutt v. Tumminelli, D2000-1758 (WIPO Feb. 2, 2001) (finding that the respondent did not register and use the <racegirl.com> domain name in bad faith because the complainant provided no evidence that the respondent intended to disrupt or divert business from the complainant). Given the circumstances, the Panel does not view that Respondent and Complainant compete in some manner, or that Respondent is diverting revenue meant for Complainant, and thus it declines to find Policy ¶ 4(b)(iii) bad faith.
Complainant argues that Respondent has displayed bad faith under Policy ¶ 4(b)(iv) by attempting to commercially profit from a likelihood of confusion. Complainant argues that because each of the disputed domain names resolves to a copy of Complainant’s webpage, Internet users are likely to be confused as to the resolving webpages’ source. Complainant also argues that Respondent must be commercially profiting in the process. Prior panels have found that a Respondent who creates a likelihood of confusion and commercially profits in the process has engaged in bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). The Panel finds that a likelihood of confusion exists, that Respondent is commercially profiting from the redirection of Internet users to its own website, and bad faith under Policy ¶ 4(b)(iv).
Complainant also argues that Respondent is typosquatting in bad faith. Complainant notes that each of the disputed domain names capitalize on common misspellings and homonyms. Prior panels have found bad faith where the domain name(s) at issue consist of common misspellings of the mark at issue, the respondent has engaged in bad faith typosquatting. See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (holding that the practice of typosquatting “diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith . . . ”). The Panel finds that Respondent’s domain names consist of common misspellings of the KABBAGE mark, and thus finds that Respondent is typosquatting in bad faith under Policy ¶ 4(a)(iii).
Lastly, Complainant argues that Respondent had actual knowledge of Complainant’s trademark rights. Complainant notes that it used to have a contractual relationship with Respondent, but does not specify what that relationship was. Complainant has provided a copy of a portion of this contract, which appears to refer to Respondent as a publisher. A provision of that contract, which Complainant has highlighted, states that Respondent is not to create a website that resembles Complainant’s website or “leads customer to believe you are Kabbage.com or any other affiliated business.” Id. Prior panels have found that a respondent who was aware of the complainant’s trademark rights at the time of the domain name’s registration has acted in bad faith. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration). Thus, the Panel finds Respondent was aware of Complainant’s rights in the KABBAGE mark, and finds bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kababge.com>, <cabagge.com>, <kanbage.com>, and <kappage.com> domain names be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: June 5, 2015
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