Kabbage, Inc. v. Zhichao Yang
Claim Number: FA1506001624159
Complainant is Kabbage, Inc. (“Complainant”), represented by Shawn Farmer of Muskin & Farmer LLC, Pennsylvania, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dabbage.com>,<jabbage.com>, <kabbaeg.com>, <kabbafe.com>, <kabbagee.com>, <kabbages.com>, <kabbagge.com>, <kabbagr.com>, <kabbagw.com>, <kabbahe.com>, <kabbake.com>, <kabbgae.com>, <kabbsge.com>, <kkabbage.com>, <ksbbage.com>, and <pabbage.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 June 12, 2015; the Forum received payment on June 12, 2015.
On June 12, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dabbage.com>, <jabbage.com>, <kabbaeg.com>, <kabbafe.com>, <kabbagee.com>, <kabbages.com>, <kabbagge.com>, <kabbagr.com>, <kabbagw.com>, <kabbahe.com>, <kabbake.com>, <kabbgae.com>, <kabbsge.com>, <kkabbage.com>, <ksbbage.com>, and <pabbage.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 June 15, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 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@dabbage.com, postmaster@jabbage.com, postmaster@kabbaeg.com, postmaster@kabbafe.com, postmaster@kabbagee.com, postmaster@kabbages.com, postmaster@kabbagge.com, postmaster@kabbagr.com, postmaster@kabbagw.com, postmaster@kabbahe.com, postmaster@kabbake.com, postmaster@kabbgae.com, postmaster@kabbsge.com, postmaster@kkabbage.com, postmaster@ksbbage.com, postmaster@pabbage.com. Also on June 15, 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 July 15, 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 uses the KABBAGE mark to distinguish itself as a financial services provider, connecting potential entrepreneurs with small loans through their website. Complainant has registered the KABBAGE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,905,311, registered January 11, 2011), which demonstrates its rights in the mark. Complainant asserts that the disputed domain names are confusingly similar to the KABBAGE mark as they merely misspell and/or add letters to Complainant’s mark. Additionally, the disputed domain names are confusingly similar to Complainant’s mark because Respondent’s disputed domain names redirect Internet users to an identical copy of Complainant’s website, leading users to believe that the disputed domain names are controlled by Complainant.
(ii) Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names or any variant of Complainant’s mark. Additionally, Respondent’s use of the disputed domain names is not making a bona fide offering of goods and services, nor is it noncommercial or fair use of Complainant’s mark. Respondent uses the disputed domain names generate revenue through affiliate marketing based on access by Internet users due to misspelling Complainant’s mark.
(iii) Respondent has registered and is using the disputed domain names in bad faith. Respondent has engaged in a pattern of bad faith use and registration demonstrated by numerous UDRP proceedings wherein Respondent has been unsuccessful and by registering multiple disputed domain names in the instant case. Further, Respondent is engaging in the tactic of typosquatting, thereby demonstrating bad faith under Policy ¶ 4(a)(iii).
B. Respondent
(i) Respondent did not submit a response in this proceeding.
(ii) The Panel notes that the <pabbage.com>, <ksbbage.com>, <kkabbage.com>, <kabbsge.com>, <kabbgae.com>, <kabbake.com>, <kabbahe.com>, <kabbagee.com>, <kabbafe.com>, <kabbaeg.com>, <jabbage.com>, <dabbage.com>, and <kabbagw.com> domain names were registered on July 9, 2013. The Panel also notes that the <kabbagr.com> and <kabbagge.com> domain names were registered on May 8, 2014. The Panel further that the <kabbages.com> domain name was registered on June 25, 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 uses the KABBAGE mark to identify itself as a financial services provider, connecting potential entrepreneurs with small loans through their website. Complainant has registered the KABBAGE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,905,311, registered January 11, 2011), which allegedly demonstrates its rights in the mark. The Panel concludes that trademark registrations with the USPTO demonstrate Complainant’s rights in the KABBAGE mark pursuant to Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Complainant contends that the disputed domain names are confusingly similar to the KABBAGE mark as they simply misspell and/or add letters to Complainant’s KABBAGE mark. Past panels have concluded that these misspellings and additions of letters do not negate a finding of confusing similarity between Complainant’s mark and Respondent’s disputed domain names. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks). The Panel notes that all of the disputed domain names also differ from Complainant’s KABBAGE mark by the addition of the generic top-level domain (“gTLD”) “.com.” Again, panels have concluded that such an addition does not negate a finding of confusing similarity under Policy ¶ 4(a)(i). 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). As such, the Panel finds that each of the disputed domain names is confusingly similar to Complainant’s 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 names 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 alleges that Respondent has no rights or legitimate interests in the disputed domain names. First, Complainant argues that Respondent is not commonly known by the disputed domain names or any variant of the KABBAGE mark. Further, Complainant argues that Respondent has not been authorized by Complainant to use the KABBAGE mark, or any variations or misspellings. The Panel notes that the WHOIS information merely lists “Zhichao Yang” as registrant. Because Respondent has failed to provide any evidence for the Panel’s consideration, the Panel finds no basis in the available record to find Respondent commonly known by the disputed domain names per Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complainant argues that Respondent’s use of the disputed domain names is not a bona fide offering of goods or services, nor is it a noncommercial or fair use of Complainant’s KABBAGE mark per Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). Complainant asserts that Respondent uses the disputed domain names simply to generate revenue through affiliate marketing based on each and every unwitting access due to misspelling. Complainant has provided evidence of such use in Attached Annexes 4-21, in which it appears that Internet users are redirected to Complainant’s own website, without the permission of Complainant. Complainant does acknowledge that there was a contractual agreement between Complainant and Respondent at one point, however such contract has since expired according to Complainant. The Panel notes that Complainant did not specify what type of contract this was, but it seems to be that it may have been an affiliate agreement. The Panel agrees that Respondent’s use of the disputed domain names simply to generate revenue based on misspellings of Complainant’s KABBAGE mark indicates a lack of rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4 (a)(ii). See Gen. Mills, Inc. v. Zuccarini, FA 97050 (Nat. Arb. Forum May 30, 2001) (“[U]nder the “Policy,” Respondent may not utilize close derivations of famous and distinctive trademarks and, thus, profit from Internet users’ misspelling the Internet destinations they desire.”).
Complainant asserts that Respondent has engaged in bad faith registration and use of the disputed domain names. First, Complainant argues that Respondent has engaged in a pattern of bad faith use and registration as evidenced by Respondent’s registration of multiple domain names and history of UDRP cases. Complainant asserts that it has been unable to find a single arbitration proceeding wherein Respondent has been successful. Complainant has provided evidence of this pattern. See Compl., at Attached Ex. 54. See Capital One Financial Corp. v. Zhichao Yang; see also Fair Isaac Corporation v. Zichao Yang. Complainant argues that Respondent’s use of multiple domain names and history of UDRP cases provide strong evidence that Respondent has engaged in a pattern of bad faith under Policy ¶ 4(b)(ii). Past panels have agreed that registering multiple domain names and a history of UDRP cases can demonstrate bad faith under Policy ¶ 4(b)(ii). See Caterpillar Inc. v. Miyar, FA 95623 (Nat. Arb. Forum Dec. 14, 2000) (finding that registering multiple domain names in a short time frame indicates an intention to prevent the mark holder from using its mark and provides evidence of a pattern of conduct); see also 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). Consequently, the Panel finds that Respondent’s behavior indicates bad faith under Policy ¶ 4(b)(ii).
Further, Complainant alleges that Respondent has engaged in the tactic of typosquatting by attempting to capitalize on misspellings, homonyms, broken links, and improperly entered URLs. The Panel has found above the confusing similarity between Respondent’s disputed domain names and Complainant’s mark, in that the disputed domain names are common and easy misspellings of Complainant’s mark. As the Panel agrees with Complainant’s contentions here, the Panel finds that Respondent has engaged in bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use 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 <dabbage.com>, <jabbage.com>, <kabbaeg.com>, <kabbafe.com>, <kabbagee.com>, <kabbages.com>, <kabbagge.com>, <kabbagr.com>, <kabbagw.com>, <kabbahe.com>, <kabbake.com>, <kabbgae.com>, <kabbsge.com>, <kkabbage.com>, <ksbbage.com>, and <pabbage.com> domain names be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: July 28, 2015
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