The Complainant is Kravet Inc of Bethpage, New York, United States of America (“United States” or “U.S.”), represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).
The Respondent is Sushil Kriplani, Royce Wool Carpets of Austin, Texas, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 27, 2016. On January 28, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 28, 2016, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent’s 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 1, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 21, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 22, 2016.
The Center appointed Evan D. Brown as the sole panelist in this matter on March 2, 2016. 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 following facts, relevant to the Panel’s determination, are set forth in the Complaint and are not disputed by the Respondent.
The Complainant is an industry leader in the home trade furnishings industry. The Complainant distributes fabrics, furniture, wall coverings, trimmings and accessories. The Complainant also distributes carpets which it sources from around the world, inviting artisans using centuries-old techniques and craftsmen incorporating eco-friendly materials to create custom and semi-custom interior floor coverings. The Complainant owns a number of trademark registrations in different jurisdictions for the mark KRAVET (the “Mark”), e.g., U.S. Reg. No. 1240403 (issued May 31, 1983).
According to the WhoIs database, the Respondent registered the disputed domain name on May 16, 2015. 5. Parties’ Contentions A. Complainant
The Complainant asserts that the disputed domain name is identical or confusingly similar to the Mark. Specifically, the Complainant argues, the disputed domain name is not only substantially similar to the Mark in terms of sound and appearance but also in terms of giving the impression that it is connected or related to the Complainant’s carpets and rugs by the inclusion of the words “carpets by” within the disputed domain name.
As for the second UDRP element, the Complainant asserts that the Respondent lacks rights or legitimate interests in the disputed domain name because, in part, the Respondent’s only use of the disputed domain name is for a parking page. Moreover, the Complainant observes that the disputed domain name appears to be owned by the Chief Executive Officer of a Texas-based company that, like the Complainant, operates in the home furnishings industry, specifically carpets. But there is no evidence that the Respondent owns any trademark rights in a name corresponding to the disputed domain name, or is known by the disputed domain name.
Under the third UDRP element, the Complainant asserts that the Respondent, because it operates in the same industry as the Complainant, is familiar with the Complainant and its products. The Complainant also submits evidence indicating that, prior to filing the Complaint, it informed the Respondent via email of its rights in the Mark and demanded that the Respondent transfer the disputed domain name to the Complainant. The Respondent replied to the Complainant’s email communication suggesting that the Complainant “should file suit in the appropriate jurisdiction and have Kravet incur the legal expenses” and that the Respondent is “not too fond of attorneys and know[s] how to deal with them” and does not “care about [the Complainant’s] deadlines”. Moreover, the Respondent has engaged in a pattern of registering 24 other domain names, all on the same day, that contain third party marks of other competitors operating in the carpet and floor covering industry. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(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.
The Panel finds that all three of these elements have been met in this case. A. Identical or Confusingly Similar
The Complainant has provided evidence of its registrations of the Mark in several countries, including in the United States, where the Respondent is located. On the basis of these registrations, the Panel is satisfied that the Complainant has rights the Mark.
The Panel also finds that the disputed domain name is confusingly similar to the Complainant’s Mark. The disputed domain name incorporates the term “Kravet” which is the more distinctive and dominant element in the disputed domain name as compared to the words “carpets by” which are merely descriptive of the products in question. In this regard, it has been stated in Microsoft Corporation v. J. Holiday Co.,WIPO Case No. D2000-1493, that generally, a user of a mark “may not avoid likely confusion by appropriating another’s entire mark and adding descriptive or non-distinctive matter to it”. In the present case, the dominant element in the disputed domain name is not only substantially similar to the Mark in terms of sound and appearance but also in terms of giving the impression that it is connected or related to the Complainant’s carpets and rugs by the use or inclusion of the words “carpets by” in the disputed domain name.
For these reasons, the Panel finds that paragraph 4(a)(i) of the Policy has been satisfied. B. Rights or Legitimate Interests
The Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes that showing, the burden of demonstrating rights or legitimate interests shifts to the Respondent. See, Canon U.S.A., Inc. v. Miniatures Town,WIPO Case No. D2014-0948, citing WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.1 (after the complainant makes a prima facie case, the burden of showing rights or legitimate interests in the domain name shifts to the respondent).
The Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. By failing to respond to the Complaint, the Respondent did not overcome its burden of demonstrating rights or legitimate interests, and no other facts in the record tip the balance in the Respondent’s favor.
Paragraph 4(c) of the Policy instructs respondents on a number of ways they could demonstrate rights or legitimate interests (“you” and “your” in the following refers to the particular respondent): “(i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are 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.”
In this case, there are several indicators concerning the Respondent’s lack of rights or legitimate interests. The Respondent is not commonly known by the disputed domain name, nor is there any evidence in the record showing the Respondent’s use of, or demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services before any notice of the dispute. To the contrary, the Respondent appears to be a competitor of the Complainant acting in bad faith. C. Registered and Used in Bad Faith
The Policy requires a complainant to establish that the disputed domain name was registered and is being used in bad faith. The Policy describes several non-exhaustive circumstances demonstrating a respondent’s bad faith use and registration. Under paragraph 4(b)(iv) of the Policy, a panel may find bad faith when a respondent “[uses] the domain name to intentionally attempt to attract, for commercial gain, Internet users to [respondent’s] web site or other on-line location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] web site or location or a product or service on [respondent’s] web site or location.”
In this case, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. The Respondent – apparently a competitor of the Complainant – could not have ignored its awareness of the Complainant’s trademark rights when it registered the disputed domain name. The Respondent also continued its use of the disputed domain name after the Complainant reminded the Respondent of its rights to the Mark and demanded the transfer of the disputed domain name. Further, the evidence shows that the Respondent’s primary motive in relation to the registration and use of the disputed domain name was to capitalize on, or otherwise take advantage of, the Complainant’s trademark rights, as the disputed domain name had resolved to a page offering the disputed domain name for sale and later to a page displaying pay-per-click links. Finally, the fact that the Respondent registered 25 domain names in one day, each incorporating the trademarks of competitors in the Respondent’s industry, demonstrates that the Respondent has engaged in a pattern of conduct which UDRP panels routinely find to support bad faith. 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.
Evan D. Brown
Sole Panelist
Date: March 16, 2016
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