The Complainant is American Woodmark Corporation of Winchester, Virginia, United States of America (“United States”), represented by Gavin Law Offices, PLC, United States.
The Respondent is Domain Admin, this company does not own this domain name s.r.o. of Praha, Czech Republic / Hulmiho Ukolen, Poste restante of Helsinki, Finland. 2. The Domain Name and Registrar
The disputed domain name is registered with Hebei Guoji Maoyi (Shanghai) LTD aka HEBEI INTERNATIONAL TRADING (SHANGHAI) CO., LTD dba HebeiD (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 9, 2015. On April 10, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 14, 2015, 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 April 15, 2015 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 amendment to the Complaint on April 15, 2015.
On April 15, 2015, the Center notified the Parties in both English and Finnish that the language of the Registration Agreement for the disputed domain name was Finnish. On April 15, 2015, the Complainant requested for English to be the language of the proceeding, to which the Respondent has not replied.
The Center verified that the Complaint together with the amendment to 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 proceeding commenced on April 21, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 11, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 12, 2015.
The Center appointed George R. F. Souter as the sole panelist in this matter on May 20, 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. Language of the Proceeding
As stated above, on April 15, 2015, the Center notified the Parties in both English and Finnish that the language of the Registration Agreement for the disputed domain name was Finnish, and the Complainant requested that the language of the proceeding should be English. The Respondent made no objection to this request. Hulmiho Ukolen does not appear to be a Finnish name, and the Finnish Population Register contains no reference to any resident of Finland under either the first name or surname Hulmiho or Ukolen. The Panel further notes that the disputed domain name resolves to a website containing links in English. In the Panel’s opinion, requiring the Complainant to submit its Complaint in Finnish in these circumstances would be unduly onerous. The Panel therefore exercises its discretion under paragraph 11 of the Rules and decides that the language of the proceeding in the present case should be English. 4. Factual Background
The Complainant is a United States corporation, which has manufactured and sold kitchen and bathroom cabinetry across the United States since its incorporation in 1980, and currently employs close to 5,000 people and operates nine manufacturing facilities throughout the United States. The Complainant’s cabinetry lines “Shenandoah” and “Shenandoah Value Series” include more than one hundred and sixty different styles of cabinets and are sold to the public nationwide in the United States through the well-known retailer Lowe’s. Details of considerable advertising expenditure in connection with its SHENANDOAH trademark in respect of its cabinetry products in the United States have been supplied to the Panel, as have details of the Complainant’s trademark registrations, including US Federal Registration No. 2417860 of its trademark SHENANDOAH CABINETRY in Class 20, dating from January 2, 2001 (which is over five years before the date of registration of the disputed domain name).
The disputed domain name was registered on June 1, 2006. 5. Parties’ Contentions A. Complainant
The Complainant alleges that the disputed domain name is confusingly similar to its SHENANDOAH CABINETRY trademark.
The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, in particular that it has not licensed the Respondent, nor has the Respondent obtained permission, express or implied, from the Complainant to use the disputed domain name or any variations thereof, either at the time the Respondent registered and began using the disputed domain name or at any time since. The Complainant further states that the Respondent is not an authorized distributor or reseller of the Complainant’s cabinets and no other connection exists between the Complainant and the Respondent.
The Complainant alleges that the disputed domain name has been registered in bad faith, and is being used in bad faith in connection with a “parked” website with advertisements for products competing with those of the Complainant, and that, further, the Respondent has placed the disputed domain name for sale at $ 8,450, a price which clearly far exceeds the Respondent’s out-of-pocket costs in registering the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(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. A. Identical or Confusingly Similar
It is well established in decisions under the UDRP that generic Top-Level Domain (“gTLD”) indicators (e.g., “.com”, “.info”, “.net”, “.org”) may be considered irrelevant in assessing confusing similarity between a trademark and a disputed domain name. The Panel agrees with this view and considers the gTLD indicator “.com” to be irrelevant in connection with the disputed domain name in the present case.
In the Panel’s opinion, the mere misspelling (in the Panel’s view, in the circumstances of the present case, probably deliberate) of the word “cabinetry” as “cabintry” is clearly insufficient to avoid a finding that the disputed domain name is confusingly similar to the Complainant’s SHENANDOAH CABINETRY trademark.
The Panel, consequently, finds that the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy in connection with the disputed domain name. B. Rights or Legitimate Interests
It is the consensus view of UDRP panels, with which the present Panel agrees, that a prima facie case advanced by a complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy.
The Panel regards the submissions put forward by the Complainant as described above as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name, may lead, in appropriate circumstances, to a finding that a disputed domain name was registered in bad faith. The Panel regards the circumstances of the present case, in which the Complainant’s SHENANDOAH CABINETRY trademark was incorporated in its entirety, the only difference being a misspelling of “cabinetry” as “cabintry”, which gives rise to grave suspicion that the disputed domain name was deliberately “coined” from the Complainant’s trademark, as sufficient for the Panel to find that the disputed domain name was registered in bad faith.
It is well-established in prior decisions under the UDRP that the use of a website operated under a disputed domain name to advertise competing goods or services to those of a complainant constitutes use of that domain name in bad faith, and the Panel so finds in the circumstances of the present case. Having so decided, the Panel has not found it necessary to consider the offer for sale of the disputed domain name for a price greatly exceeding the cost of its registration.
The Panel finds that the Complainant has satisfied the dual requirements of paragraph 4(a)(iii) of the Policy. 7. Decision
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 be transferred to the Complainant.
George R. F. Souter
Sole Panelist
Date: June 6, 2015
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