The Complainant is Etechaces Marketing and Consulting Private Limited, India, represented by Wadhwa Law Chambers, India.
The Respondent is Rahul Verma, India.
The disputed domain name <paisabazar.live> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 23, 2020. On July 23, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 24, 2020, 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 July 24, 2020 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 July 30, 2020.
The Center verified that the Complaint together with the amended 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 August 4, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 24, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 25, 2020.
The Center appointed Shwetasree Majumder as the sole panelist in this matter on September 3, 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.
The Complainant, Etechaces Marketing and Consulting Pvt. Ltd appears to be a company registered and incorporated on June 4, 2008 under Indian law. The Complainant through its subsidiary Paisabazaar Marketing and Consulting Private Limited claims to be engaged in providing comparison of insurance policies, loans and credit cards, investment plans, etc. on the online platform “www.paisabazaar.com” thus enabling customers to pick out the product best suited to them on the basis of quality and price.
The Complainant claims that its subsidiary had commenced its business, in the year 2011, under the brand and banner PAISABAZAAR and that its online portal has become the largest online platform in India for facilitation and distribution of lending products. According to the Complainant, PAISABAZAAR works with over 70 partners which includes India's leading banks, NBFCs and mutual funds, in over 450 cities across India, offering more than 300 financial products.
The Complainant is the registered proprietor and holds a number of trademark registrations for:
i. the word mark PAISABAZAAR (five registrations numbered 2183640 to 2183644, filed on August 1, 2011, in classes 16, 35, 36, 38, and 41 respectively);
ii. the PAISABAZAAR.COM and PAISABAZAAR logo (four registrations numbered 2848053, 2848056, 2848058 and 2848060 filed on November, 21, 2014, in classes 35, 36, 38, and 41 respectively) and
iii. the PAISABAZAAR.COM and PAISABAZAAR logo (registration numbered 3734592 filed on January 23, 2018, covering classes 16, 35, 36, 38, 41 and 42 respectively).
Trademark registration certificates for the above-mentioned trademark registrations of the Complainant have been attached as Annex 10 to the Complaint.
The Complainant is the registrant of various domain names consisting of its trademark PAISABAZAAR. A list of 569 such domain names has been furnished by the Complainant and the same is attached as Annex 5 to the Complaint.
According to the Registrar report and the WhoIs records, the disputed domain name <paisabazar.live> was registered by the Respondent on February, 1, 2020. Extract of the WhoIs search result for the disputed domain name has been attached as Annex -1 to the Complaint. A perusal of Annex 6 and 7 attached to the Complaint clearly sets out that the disputed domain name as on April 13, 2020, resolved into a fully functional website where the Respondent was offering identical services as that of the Complainant namely financial services. The said annexures clearly illustrate that the said website in addition to containing references to “paisabazar” and <paisabazar.live> also used “paisabazar” as a part of its email ID namely “info@paisabazar.live”.
On April 14, 2020, the Complainant sent a cease and desist letter to the Respondent, seeking that the website hosted on the disputed domain name be taken down and that the disputed domain name be transferred to the Complainant. The Complainant claims that even though no response has been received to the said letter until date, pursuant to the issuance of the same, the website hosted on the disputed domain name has been taken down.
According to the Complainant, it had further sent a follow-up letter on May 28, 2020, demanding a transfer of the disputed domain name in its favour to which once again there has been no response from the Respondent. Copies of the cease and desist letter dated April 14, 2020 and follow-up letter dated May 28, 2020 are attached to the Complaint as Annex 8 and Annex 9 respectively.
The Complainant contends that it is the owner and registered proprietor of the PAISABAZAAR, PAISABAZAAR.COM and the PAISABAZAAR (logo) trademarks in various classes in India. The Complainant further states that it also has common law rights in the said trademarks and owns all other intellectual property rights associated with the use of PAISABAZAAR trademark in relation to online financial services business. The Complainant contends that its rights in the PAISABAZAAR trademark and the domain name <paisabazaar.com> have also been recognized in a previous UDRP decision, Etechaces Marketing and Consulting Private Limited v. Soham Krishna, WIPO Case No. DAE2018-0007. A copy of the said decision has been attached as Annex 11 to the Complaint
The Complainant argues that disputed domain name <paisabazar.live> is identical/confusingly similar to the Complainant’s trademark PAISABAZAAR, as it uses a virtually identical/deceptively similar term “Paisabazar”. The Complainant contends that the term “Paisabazar” stands out in the disputed domain name which leads the public to think that the disputed domain name is somehow connected to the Complainant’s PAISABAZAAR mark. The Complainant states that the sole intention of the Respondent in registering the disputed domain name was to commit fraud and dupe innocent customers.
The Complainant also contends that the conduct of the Respondent in using an identical/confusingly similar mark as that of the Complainant for providing identical services evidences that the disputed domain name has been registered with the mala-fide intention of taking undue advantage of the Complainant’s trademark by diverting the business of the Complainant. The Complainant placing reliance on previous UDRP decisions namely Geobra Brandstätter GmbH & Co KG v. Only Kids Inc, WIPO Case No. D2001-0841 and The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064, argues that minor differences of spelling and punctuation in the disputed domain name does not eliminate confusion with a trademark, particularly where the trademark is well known. The Complainant therefore states that the mere omission of the letter “a” by the Respondent in disputed domain name does not dispel confusing similarity with the Complainant’s well-known trademark PAISABAZAAR.
The Complainant contends that irrespective of the addition of the generic Top-Level Domain ("gTLD") suffix “.live”, the disputed domain name is identical/confusingly similar to the Complainant’s PAISABAZAAR trademark and the said identity/confusing similarity of the disputed domain name and the Complainant’s trademark shall lead Internet users in associating the disputed domain name with the Complainant’s services, thereby leading to confusion and unwarranted gain to the Respondent.
Reliance in this regard was placed by the Complainant on previous UDRP decisions and section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”). The Complainant therefore states that the disputed domain name is identical and/or confusingly similar to the mark in which the Complainant has rights.
The Complainant claims that the Respondent has no rights or legitimate interests in the disputed domain name <paisabazar.live> because the Complainant has not granted any license or otherwise consented to the Respondent’s use of the trademark PAISABAZAAR/PAISABAZAAR.COM in any connection with the disputed domain name. The Complainant further states that there is no commercial relationship between the Complainant and the Respondent which would entitle the Respondent to use the Complainant’s mark. PAISABAZAAR. The Complainant in support of its claims cited the UDRP decision Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
The Complainant contends that it has prior rights in its trademarks which precede the Respondent’s mala fide registration of the disputed domain name. The Complainant argues that the Respondent has registered the disputed domain name with complete knowledge of the immense reputation and goodwill that the Complainant enjoys in the online financial and insurance services industry. According to the Complainant, the Respondent was offering identical services as that of the Complainant through the website on the disputed domain name in an attempt to take advantage of the Complainant’s substantial reputation and prominent presence on the Internet resulting in confusion amongst the public, diverting business and tarnishing the reputation and goodwill of the Complainant. Reliance in this regard was also placed upon prior UDRP decisions namely Cash Converters Pty Ltd. v. John Cox, WIPO Case No. D2013-0721, Pfizer Inc. v. jg a/k/a Josh Green, WIPO Case No. D2004-0784; and Houghton Mifflin Co. v. The Weathermen, Inc., WIPO Case No. D2001-0211.
The Complainant contends that use of the disputed domain name, <paisabazar.live>, identical/confusingly similar to its trademark PAISABAZAAR does not constitute bona fide offering of goods and services. The Complainant relies on the previous UDRP decision, Coca-Cola Company v. MyFanta Networks, S.L., WIPO Case No. D2011-2063 and argues that the Respondent’s use or demonstrable preparations to use, the disputed domain name in connection with an offering of goods and services, whether for profit or otherwise, has to be bona fide and not based on another’s trademark rights.
The Complainant contends that the Respondent’s use of the disputed domain name lacks good faith as the Respondent is basing his services on the registered trademark of the Complainant PAISABAZAAR.
The Complainant contends that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name as the sole intention in registering the disputed domain name seems to be to commit fraud and dupe innocent customers. Further, after receipt of the Complainant’s letter to cease from using the disputed domain name, the Respondent removed the content and kept the website corresponding to the disputed domain name inactive. According to the Complainant, this does not constitute a legitimate noncommercial or fair use of a domain name in the circumstances of the present case. Reliance in this regard has been placed upon previous UDRP decisions Universal City Studios, Inc. V. G.A.B. Enterprises, WIPO Case No. D2000-0416 and Merryvale Limited v. Liang Zhuge, WIPO Case No. D2018-2811.
The Complainant states that it has used the mark PAISABAZAAR since 2011 and has also obtained several trademark registrations for the same in various classes. The Complainant claims that a simple search for the mark PAISABAZAAR by the Respondent would have revealed both the prior use and the several registrations obtained by the Complainant for the said trademark. The Complainant contends that owing to the well-known status of the Complainant’s mark PAISABAZAAR and its marked presence on the Internet, the Respondent is deemed to have the knowledge of the Complainant’s trademark.
The Complainant claims that the Respondent deliberately and with the knowledge of the existence and repute of the Complainant’s trademark PAISABAZAAR had adopted the disputed domain name <paisabazar.live> which reflects the bad faith of the Respondent. The Complainant also contends that the failure of the Respondent to reply to cease and desist letter served onto it was to be taken as an indicator of bad faith. Reliance was placed in support of its submissions upon various prior UDRP Panel decisions, including Remy Cointreau Luxembourg S.A. v. Deividas Samulionis, UAB "Sentosa", WIPO Case No. D2016-2232 and Samsung Electronics Co. Ltd. v EAO Digital Solutions, WIPO Case No. D2012-0693.
The Complainant by citing previous UDRP Panel decisions arguesthat the disputed domain name is virtually identical and confusingly similar to the Complainant’s trademark. 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. The Complainant claimed that attracting Internet traffic by using a domain name identical or confusingly similar is evidence of bad faith under paragraph 4(b)(iv) of the Policy. The Complainant cited Ed Fund v Jack Benny, WIPO Case No. D2007-0805 and AltaVista Company v Saeid Yomtobian, WIPO Case No. D2000-0937 in support of its submissions.
The Respondent did not reply to the Complainant’s contentions.
The Panel finds that the proceedings have been conducted in accordance with the Rules and the Policy. Having gone through the series of communications as set out above under the section on Procedural History, the Panel concludes that the Center has notified the Respondent of this proceeding and has discharged its responsibility under paragraph 2(a) of the Rules. The Panel finds that the proceedings have been conducted in accordance with the Rules and the Policy. According to paragraph 14(a) of the Rules, where there is a failure by the Respondent to provide a response to the allegations of the Complainant, as in the present case, the Panel in accordance with paragraph 14(b) shall “draw such inferences therefrom as it considers appropriate”.
The Respondent, despite being accorded an opportunity, furnished no formal response, and the deadline for the same expired on August 24, 2020. Taking into consideration the Respondent’s default, the Panel can infer that the Complainant’s allegations are true where it considers that to do so would be reasonable and appropriate.
Section 4.3 of the WIPO Overview 3.0 clearly stipulates that the Respondent’s default (failure to submit a formal response) would not by itself mean that the Complainant is deemed to have prevailed. The burden still remains with the Complainant to prove each of the three elements required by paragraph 4(a) of the Policy. See, The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064.
The Complainant under paragraph 4(a) of the Policy in order to succeed must satisfy the Panel on each of the following three elements by preponderance of evidence.
I. the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has 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.
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 trademark registration provides a clear indication that the rights in the trademark belong to the Complainant. See, WIPO Overview 3.0, section 1.2.1.
The Complainant has provided detailed evidence of its rights in the PAISABAZAAR, PAISABAZAAR.COM and the PAISABAZAAR (logo) trademarks in India on the basis ofmultiple trademark registrations, the earliest of which can be traced back to the year 2011 (Indian Trademark Registration Nos. 2183640 in Class 16, 2183641 in Class 35, 2183642 in Class 36, 2183643 in Class 38 and 2183644 in Class 41) well before the Respondent registered the disputed domain name on February 1, 2020. Valid and subsisting trademark registrations constitute prima facie evidence of ownership, validity and the exclusive right to the use the said trademark in connection with the stated goods and services.
The Panel further observes that the disputed domain name <paisabazar.live> is exactly the same as the Complainant’s registered trademark PAISABAZAAR, with the one change of a missing letter “a” in the middle, a mistake easily made by web users quickly typing in a domain name. WIPO Overview 3.0, section 1.9, clearly sets out that a domain name, which consists of a common, obvious, or intentional misspelling of a trademark is to be considered by the Panels to be confusingly similar to the relevant mark for purposes of the first element outlined under paragraph 4(a) of the Policy.
Lastly, the Panel notes that section 1.11 of the WIPO Overview 3.0, provides that generic gTLD indicators are a standard registration requirement and also have to be disregarded under the first element in the confusing similarity test. The Panel agrees with this view and considers the gTLD indicator ".live" to be irrelevant in the present case. See, Federation Francaise de Tennis (FFT) v. Whoisguard Protected, Whoisguard, Inc. / Sampath Reddy, WIPO Case No. D2016-0864.
Accordingly, the Panel concludes, that the disputed domain name <paisabazar.live> is confusingly similar to the Complainant’s trademark PAISABAZAAR and that the the requirement of paragraph 4(a)(i) of the Policy stands satisfied.
Paragraph 4(a)(ii) of the Policy requires the Complainant to show that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel notes that the Complainant has already submitted evidence that it has exclusive rights in the PAISABAZAAR, PAISABAZAAR.COM and the PAISABAZAAR (logo) trademarks by virtue of subsisting statutory registrations in India, all of which predate the registration of the disputed domain name on February 1, 2020.
The Panel observes though the Complainant has provided a detailed list of its domain name registrations comprising of the trademark PAISABAZAAR, it has not provided the registration details for the said domain names. The Panel has independently visited the Internet and conducted random searches to obtain additional light on the matter; such power of the Panel can be read into paragraph 10(a) of the Rules. See, Société des Produits Nestlé SA v. Telmex Management Services, WIPO Case No. D2002-0070 and InfoSpace.com, Inc. v. Hari Prakash, WIPO Case No. D2000-0076. The Panel finds that the Complainant is the registrant of various domain names consisting of the trademark PAISABAZAAR including <paisabaazaar.com>, <paisabazaar.live>, <paisabazaarr.live> and <paisabazaardubai.live> which pre-date the registration of the disputed domain name by the Respondent.
The Panel is therefore satisfied that the Respondent possesses no rights or legitimate interests in the disputed domain name, the burden of production on this element therefore shifts onto the Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. The Panel notes that the Respondent has failed to produce any countervailing evidence of any rights or legitimate interests in the disputed domain name and opines that the Complainant can be deemed to have satisfied the second element under paragraph 4(a)(ii) of the Policy. See, section 2.1 of the WIPO Overview 3.0.
Furtheras 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, Alcoholics Anonymous World Services, Inc., v. Lauren Raymond, WIPO Case No. D2000-0007.
The Panel observes that there is no evidence on the record of this proceeding to suggest that the Respondent is commonly known by the disputed domain name <paisabazar.live> or that the Complainant has licensed, authorized, or otherwise consented to the Respondent’s use of the trademarks PAISABAZAAR / PAISABAZAAR.COM in any connection with the disputed domain name. In the absence of any license or permission from the Complainant to use its trademark, no actual or contemplated bona fide or legitimate use of the disputed domain name could reasonably be claimed. See, LEGO Juris A/S v. DomainPark Ltd, WIPO Case No. D2010-0138.
On a perusal of Annex 6 and 7 attached to the Complaint, the Panel is satisfied that as on April 13, 2020, the disputed domain name <paisabazar.live> resolved into a fully functional website where the Respondent was offering identical services as that of the Complainant namely financial services. The Panel further takes note of the assertions of the Complainant that pursuant to the cease and desist letter dated April, 14, 2020, the website hosted on the disputed domain name was taken down and that there has been no response of the Respondent to either the cease and desist letter or even the follow-up letter dated May, 28, 2020 until this date.
Such actions or inactions on the part of the Respondent clearly illustrate that there was no intention on its part to use the disputed domain name in connection with a bona fide commercial offering of goods and services. See, Paddy Power Plc v. Petrin Milenco Daniel, WIPO Case No. DRO2017-0009. The Respondent by registering the disputed domain name <paisabazar.live>, confusingly similar to the Complainant’s trademark PAISABAAR was seeking to unduly profit from the Complainant’s goodwill in the online financial and insurance services industry and also its renowned trademark by attracting customers to its own website for the purposes of making financial gain. See, Facebook Inc. v. Domains by Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico, WIPO Case No. D2019-0252.
The Panel observes that the erstwhile website hosted on the disputed domain name in addition to containing references to “paisabazar” and <paisabazar.live> was also using “paisabazar” as a part of its email ID namely “info@paisabazar.live”. The Panel is satisfied that the Respondent by its conduct was wrongfully attempting to associate itself with the Complainant when no such association actually exists.
Further subsequent to the erstwhile website hosted on the disputed domain name <paisabazar.live> being taken down by the Respondent post the receipt of the cease and desist letter dated April 14, 2020, no demonstrated effort has been made by the Respondent to put the disputed domain name to a legitimate non-commercial or fair use so as to confer it with a right or legitimate interest in the same.
Having regard to the relevant circumstances in this case, 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 under paragraph 4(c)(i) of the Policy and is not making a legitimate noncommercial or fair use of the disputed domain name for purposes of paragraph 4(c)(iii) of the Policy. On the contrary, the Panel finds that the Respondent had registered the disputed domain name in order to exploit and profit from the Complainant’s rights in the trademark PAISABAZAAR. Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
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.
Previous UDRP panels have consistently found that it ought to be presumed that the respondent had constructive notice of the complainant’s trademark if it is shown by the complainant to be well-known or 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 SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092.
The Panel observes that the disputed domain name <paisabazar.live> was registered on February 1, 2020, almost nine years after the Complainant first registered its trademark PAISABAAR in 2011. The Panel further notes that the Complainant has already placed on record sufficient evidence illustrating its statutory rights in the said trademark.
In the backdrop of the Complainant’s prior use, widespread and extensive business activities on the Internet, numerous domain name registrations comprising of its trademark PAISABAZAAR (dating back to the year 2009) coupled with the fact that the Complainant is also carrying out operations in India where the Respondent is apparently domiciled and providing identical services, it is highly unlikely that the Respondent did not have knowledge of the Complainant’s rights in the the PAISABAZAAR / PAISABAZAAR formative marks at the time of registration of the disputed domain name.
The Panel notes that the nature of the disputed domain name (being a misspelling of the Complainant’s trademark PAISABAZAAR by only one letter) could easily cause confusion and therefore this is a case of a deliberate typosquatting by the Respondent. Further a perusal of Annex 6 and 7 of the Complaint also reveals that the disputed domain name as on April 13, 2020, resolved into a fully functional website where the Respondent was offering identical services as that of the Complainant namely financial services.
Evaluating the above-mentioned evidence, the Panel opines that the disputed domain name had been registered and used by the Respondent with the intention of creating a likelihood of confusion as to an affiliation or association with the Complainant and its registered PAISABAAR / PAISABAZAAR formative trademarks thereby misleading Internet users/ consumers to the erstwhile website hosted on the disputed domain name. The Respondent’s intention seems to have been to to capitalize on or otherwise take advantage of the recognition and goodwill associated with the Complainant’s registered trademarks for the purposes of making unlawful gains. Such behavior qualifies as bad faith within the larger meaning of paragraph 4(b)(iv) of the Policy. See, TBNR, LLC. v. Host Master, Transure Enterprise Ltd, WIPO Case No. D2020-1158.
The Respondent’s conduct of taking down the erstwhile website hosted on the disputed domain name after receiving the cease and desist letter of the Complainant dated April 14, 2020 and the passive holding of the disputed domain name thereafter, together with the lack of rebuttal by the Respondent of the Complainant’s allegations is also an indication of bad faith. Previous UDRP panels have ruled that the non use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding. See, Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055.
Accordingly, having regard to the circumstances of this particular case, the Panel holds that the Complainant has met its burden under paragraph 4(a)(iii) of the Policy.
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 <paisabazar.live> be transferred to the Complainant.
Shwetasree Majumder
Sole Panelist
Date: September 17, 2020