WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Credit Karma, Inc. v. Nexperian Holding Limited / Zhang Cun Shuo
Case No. D2017-1820
1. The Parties
The Complainant is Credit Karma, Inc. of San Francisco, California, United States of America (“USA”), represented by Reed Smith LLP, USA.
The Respondent is Nexperian Holding Limited of Hanghzou, Zhejiang, China / Zhang Cun Shuo of Nanyang, Henan, China.
2. The Domain Name and Registrar
The disputed domain name <credikarma.com> is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 20, 2017. On September 21, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 22, 2017, 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 September 25, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same day, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant filed an amended Complaint and requested that English be the language of the proceeding on September 27, 2017. The Respondent did not comment on the language of the proceeding by the specified due date.
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 in English and Chinese of the Complaint, and the proceeding commenced on October 2, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 22, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 23, 2017.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on October 31, 2017. 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.
On November 2, 2017, the Center requested the Complainant to re-file Annex 4 to the Complaint.
On November 3, 2017, the Complainant filed a Supplemental Communication with an amended Annex 4 to the Complaint.
4. Factual Background
The Complainant is a company incorporated in the State of California in the USA, and is the owner of trade mark registration number 4,014,356 in the USA for the trade mark CREDIT KARMA (the “Trade Mark”), with a registration date of August 23, 2011. The Complainant has been using the Trade Mark since 2008 in connection with its credit monitoring services.
The Complainant claims to have more than 700 employees and 75 million customers in the USA and Canada.
The Respondent is apparently a resident of China.
C. The Disputed Domain Name
The disputed domain name was registered on September 16, 2011.
D. Use of the Disputed Domain Name
The Complainant asserts that the disputed domain name has previously been resolved, without any apparent rhyme or reason, to various websites of the Complainant’s competitors and to commercial websites unrelated to the Complainant. As at the date of this Decision, the disputed domain name is not being used.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Complainant has requested that the language of the proceeding be English, for the following reasons:
(i) The disputed domain name was registered in English and the contact information in the WhoIs record for the disputed domain name is written in English;
(ii) The disputed domain name has been redirected to commercial websites the entire content of which is written in English;
(iii) Prior UDRP proceedings involving the Respondent have been conducted in English, and at least one panel has previously found that there are sufficient reasons to conclude that the Respondent understands sufficient English; and
(iv) The Complainant does not speak Chinese, and translating the Amended Complaint would unnecessarily burden the Complainant and delay this proceeding.
The Respondent, having received notice of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding and did not file a response.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
The Panel rejects ground (i), and there is no evidence before the Panel to support ground (ii) (see section C below).
The Panel finds however that ground (iii) provides sufficient evidence to suggest the likely possibility that the Respondent is conversant in English. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner (ground (iv)).
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
6.2. Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name consists of a common, obvious, or intentional misspelling of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9).
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed 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 (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, according to the evidence before the Panel, the disputed domain name has not been used.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Complainant relies on paragraph 4(b)(iv) of the Policy, and asserts that the disputed domain name has been resolved, without any apparent rhyme or reason, to various websites of the Complainant’s competitors and to commercial websites unrelated to the Complainant.
In the Complainant’s supplemental communication, the Complainant asserts that the disputed domain name does not consistently resolve to the same commercial websites.
Annex 4 to the Complaint consists of three pages. The first page is an undated, blank screenshot of a web page with the url “www.freecreditscorees.com” and containing the wording “Redirecting... This will only take a moment. Please wait” and, at the bottom left corner of the page, the word “Connecting…”. The screenshot does not contain the disputed domain name, and there is nothing on the face of this undated screenshot to otherwise connect it in any way with the disputed domain name or with the Respondent.
The second and third pages of Annex 4 are screenshots of search results using the Yahoo Search Engine dated August 27, 2017 using the search term “credit cards”. These screenshots also do not contain the disputed domain name, and there is nothing on the face of the screenshots to otherwise connect them in any way with the disputed domain name or with the Respondent.
Upon even the most elementary assessment of Annex 4, it is readily apparent that these screenshots (namely, a blank, undated screenshot of a “redirecting” page with no apparent connection to the disputed domain; and screenshots of two pages of Yahoo search results for the generic term “credit cards”) do not provide any evidence whatsoever to support the Complainant’s assertions that the disputed domain name resolves to various commercial websites, including websites of the Complainant’s competitors.
The Complainant asserts in its Supplemental Communication as follows:
“…Complainant notes, however, that the pages included in the original Annex 4 are not erroneous. The disputed domain name does not consistently resolve to the same websites. Rather, it seems to redirect [at least did so when Complainant submitted the Complaint and the Amended Complaint…], without any rhyme or reason, to various commercial websites. The screenshots included in Annex 4 are the pages to which Complainant was redirected when attempting to reach the <credikarma.com> domain name.
However, as of yesterday, the disputed domain name no longer contains any content and resolves to a website that solely consists of the following error message “This site can’t be reached…”
The Panel is concerned that, having been given the opportunity to rectify the obvious deficiencies in Annex 4, the Complainant has maintained its contention that the disputed domain name has been resolved to commercial websites, including websites of the Complainant’s competitors. There is no such evidence before the Panel.
Of particular concern to the Panel is the fact that the Complainant’s representative law firm has maintained “that the pages included in the original Annex 4 are not erroneous”, without providing any evidence to support this bare assertion and to address the glaring deficiencies in Annex 4 – and in particular, to indicate how the screenshots are said to be linked to the disputed domain name and to the Respondent.
Notwithstanding the Panel’s serious concerns with the conduct of the Complainant’s representatives, the Panel nonetheless considers that, in all the circumstances, there is sufficient evidence to support the conclusion that the Respondent was aware of the Complainant and of its Trade Mark at the time of registration of the disputed domain name. Such factors include the distinctive nature of the Trade Mark; the repute of the Trade Mark at least in the North American marketplace; the fact the Complainant operates its business under the Trade Mark using an online platform; the close similarity of the disputed domain name to the Trade Mark; the failure of the Respondent to submit a response or to provide any evidence of actual or contemplated good faith use; and the fact the disputed domain name was registered shortly after the Complainant first obtained its registered Trade Mark rights (see WIPO Overview 3.0, section 3.3).
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith.
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 <credikarma.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: November 14, 2017