WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Etechaces Marketing and Consulting Private Limited v. S.P., Lamer
Case No. D2015-0989
1. The Parties
The Complainant is Etechaces Marketing and Consulting Private Limited of Haryana, India, represented by Wadhwa Law Chambers, India.
The Respondent is S.P., Lamer of New Delhi, India.
2. The Domain Name and Registrar
The disputed domain name <policybazar.xyz> is registered with Instra Corporation Pty Ltd. Australia (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 11, 2015. On the same day the Center transmitted by email to the Registrar a request for registration verification in connection with the disputed domain name. On June 12, 2015, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 17, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was July 7, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 8, 2015.
The Center appointed Dr. Vinod K. Agarwal as the sole panelist in this matter on July 13, 2015. 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 a company incorporated on June 4, 2008 under the laws of India. The Complainant incorporated a wholly owned company (a subsidiary) under the name “Policybazaar Insurance Web Aggregator Private Limited”. The Complainant, through Policybazaar Insurance Web Aggregator Private Limited, owns and operates an online insurance comparison portal at “www.policybazaar.com” and uses the trademarks POLICY BAZAAR, POLICYBAZAAR.COM and POLICY BAZAR in connection with its business.
Since its inception, the said subsidiary company of the Complainant has been providing insurance solutions to its Indian customers. The Complainant through its aforesaid website showcases a large number of insurance plans offered by a pool of reputed insurers thereby enabling its customers to select the plan best for them on the basis of their quality and price.
The disputed domain name was registered October 26, 2014. The Complainant has submitted evidence showing that around the time of Complaint filing the disputed domain name resolved to a website headed “Policy Bazaar” and displaying insurance information, news and articles, as well as insurance related pay-per-click (PPC) links.
5. Parties’ Contentions
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are applicable to this dispute.
In relation to the first element, the Complainant contends that POLICYBAZAAR.COM is the registered trademark of the Complainant. It is registered in Classes 16, 35, 36, 38 and 41.
The Complainant also contends that it has registered rights in POLICY BAZAR, registered in Class 16.
The Complainant’s trademark applications for “Policy Bazaar” are pending before the Indian Trademark Registry in Classes 16, 35, 36, 38 and 41.
The services rendered by the Complainant under its trademarks have acquired formidable goodwill and an enviable reputation amongst members of the trade, consumers and the public. Thus, the marks are directly associated with the Complainant.
The registration of the disputed domain name <policybazar.xyz> by the Respondent is confusing inasmuch as it causes the public to believe that <policybazar.xyz> is associated with the Complainant and <policybazaar.com>. The registration also violates the Complainant’s trademark rights. Thus, the intention of the Respondent is to create confusion in the market.
The Complainant is also the owner of a number of domain names containing its trademark POLICY BAZAAR. Some are as follows:
The Complainant further contends that the omission of the single letter “a” from “Bazaar” and the addition of the generic Top-Level Domain (gTLD) “.xyz” in the disputed domain name should not prevent a finding that it is confusingly similar to the Complainant’s trademark POLICY BAZAAR.
In relation to the second element, the Complainant contends that it has not licensed or otherwise permitted the Respondent to use its mark or to apply for or use the disputed domain name incorporating the mark and that nobody would use the phrase “policy bazar” unless seeking to create an impression of association with the Complainant. The domain name <policybazaar.com> is well known and directly connected with the Complainant.
The Respondent’s actions constitute infringement of the Complainant’s trademark. The Respondent registered the disputed domain name for the sole purpose of creating confusion and misleading the general public and the customers of the Complainant. Thus, it is contended that the Respondent has no rights or legitimate interests in the disputed domain name.
Regarding the third element, the Complainant contends that the main object of registering the disputed domain name was to attract Internet users, for commercial gain, to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website.
Further, the Respondent is wrongfully using the Complainant’s mark POLICY BAZAAR on its masthead and is providing insurance information, news and articles under the disputed domain name with PPC advertisements which provide links to third party competitor websites. This constitutes the use of the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles it is to use in rendering its decision. It states that, “[a] panelist shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The 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 domain name; and
(iii) The domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant is the owner of the registered trademarks POLICYBAZAAR.COM and POLICY BAZAR.
The disputed domain name <policybazar.xyz> contains the Complainant’s POLICY BAZAR mark in its entirety. The addition of the gTLD “.xyz” does not prevent a finding of identity or confusing similarity in this case.
Therefore, the Panel holds that the disputed domain name <policybazar.xyz> is identical or confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, the Respondent may demonstrate its rights to or legitimate interests in the disputed domain name by proving any of the following circumstances:
(i) before any notice to the Respondent of the dispute, the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent 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.
There is no evidence to suggest that the Respondent has become known by the disputed domain name. According to the WhoIs record, the Respondent is known by the names “S. P.” and “Lamer”. The Complainant has not authorized the Respondent to use its trademarks, and nothing indicates that the Respondent has filed any trademark applications for “Policy Bazar”.
Further, the disputed domain name is used by the Respondent to host PPC links offering similar services as those offered by the Complainant. This does not amount to a bona fide offering of goods or services or a noncommercial or fair use of the disputed domain name.
Based on the Respondent’s default and the evidence in the Complaint, the Panel finds that the circumstances of Policy paragraph 4(c) do not exist in this case and that the Respondent has no rights or legitimate interests in the disputed domain name.
C. 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 the domain name in bad faith:
(i) Circumstances indicating that the Respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) The Respondent has 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 it has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line 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 Complainant contends that the disputed domain name was registered or acquired primarily for the purpose of carrying on a business competitive to the Complainant and to take away the customers of the Complainant. The Respondent is not making a noncommercial or fair use of the disputed domain name. The disputed domain name is being used with the intent of commercial gain through PPC advertisements and to misleadingly divert consumers.
On May 4, 2015 the Complainant sent a cease and desist letter to the Respondent asking the Respondent to cease and desist from using the disputed domain name. The notice was sent to the email address provided by the Respondent while registering the disputed domain name. The said email delivery failed. It has been held in the case of Farouk Systems Inc., v. David, WIPO Case No. D2009-1245 that,“providing a fictitious address and an ineffective email address, the Respondent has clearly no intention of being contactable or locatable. An applicant for registration of a domain name has a duty to act honestly. The deliberate use of fictitious and/or ineffective contact particulars to register a domain name in the absence of extenuating circumstances speaks of bad faith registration and intention to use, and the subsequent use of the domain name will accordingly be tainted by bad faith as well.”
This and other information submitted by the Complainant leads to the conclusion that the disputed domain name was registered and is being used by the Respondent in bad faith.
Therefore, the Panel finds that paragraph 4(a)(iii) of the Policy is satisfied.
For the foregoing reasons, namely, that the disputed domain name is confusingly similar to a mark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered in bad faith and is being used in bad faith, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <policybazar.xyz> be transferred to the Complainant.
Vinod K. Agarwal
Date: July 24, 2015