The Complainants are Kent Ro Systems Limited (“Complainant No.1”) and Mahesh Gupta (“Complainant No. 2”), India, represented by Vutts & Associates LLP, India.
The Respondent is Aditya Kumar, Kent, India. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 14, 2020. On February 14, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 17, 2020, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 21, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 12, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 23, 2020. The Center appointed Shwetasree Majumder as the sole panelist in this matter on April 21, 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. 4. Factual Background Complainant No. 2 is the Chairman and Managing Director of Complainant No.1, an Indian company. The Complainants claim to be carrying on business exclusively under the name and trademark KENT since 1988. The mark KENT and its variants are registered trademarks of Complainant No. 2 and also forms a prominent part of the corporate name of Complainant No.1’s company. Complainant No.1 appears to be using said trademarks by virtue of a license agreement dated June 27, 2007, with Complainant No.2. The Complainants are the registered proprietors and owners of the KENT standalone and KENT formative marks in various classes before the Trade Mark Registry, India, the earliest registration for which, dates back to July, 4, 1994. Among others, Indian trademark No 1442714 registered on April 5, 2006. Copies of other trademark registration certificates are attached as Annex 21 to the Complaint. The Complainant also has numerous trademark registrations and applications worldwide. The Complainants are the registrants of the The disputed domain name was registered on March 19, 2016, and resolves into a fully functional website, which apparently sells counterfeit products and provides unauthorised services under the name of the Complainants and their trademark KENT at significantly lower prices. The Respondent’s website displays the Complainants’ trademark and in addition, also bears the picture of the Complainants’ brand ambassador, the Indian actor Hema Malini. Extracts from the Respondent’s website hosted on the disputed domain name are attached as Annex 26 to the Complaint. The Complainants allege that their water purifier, KENT SUPER PLUS is priced at INR 18,500 on their website and the same product (which is not an original product but carries the identical trademark KENT of Complainants) is priced at INR 15,000 on the Respondent’s website hosted on the disputed domain name. Extracts from the Respondent’s and the Complainants’ website illustrating the said fact have been attached as Annexes 27-28 to the Complaint. 5. Parties’ Contentions A. Complainant: The Complainants state that the disputed domain name, The Complainants state that the addition of the word “service” succeeding the trademark KENT and KENT RO in the disputed domain name The Complainants argue that they are prior users and registered proprietors of the well-know and highly distinctive trademark KENT. They state that the Respondent is using the disputed domain name for providing fake products and services under its name / trademark KENT. The Complainants contend that such use does not constitute a bona fide use of the disputed domain name or offering of goods or services. They further argue that the Respondent is neither commonly known by the disputed domain name nor is sponsored or affiliated in any way with the Complainants. They contend that the Respondent has not been licensed, authorised or permitted to use the Complainants’ trademark in any manner, including the registration of the disputed domain name. The Complainants therefore argue that the Respondent has no rights or legitimate interests in the disputed domain name under paragraph 4(a)(ii) of the Policy. The Complainants state that the disputed domain name provides fake and unauthorized products and services in the name of Complainants and is misleading and duping consumers into believing that they are associated with the Complainants. The Complainants, therefore, argue that the primary purpose of the Respondent in having registered the disputed domain name was to encash upon the goodwill and reputation of the Complainants for making commercial gains. The Complainants state that the Respondent was well aware of the significance of the Complainants’ trademark KENT at the time of the registration of the disputed domain name and that his conduct was designed to disrupt and hurt the Complainants’ business by diverting potential customers away from the Complainants’ authentic website resulting in loss of sales and damage to goodwill. Hence under paragraph 4(a)(iii) of the Policy, the Complainants contend that the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent has not filed any response to the Complainants’ contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, to succeed the Complainants must satisfy the Panel that: i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainants have rights; ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and iii) the disputed domain name was registered and is being used in bad faith. Section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“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 complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. See, the Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. A. Identical or Confusingly Similar: 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. Further, 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 Complainants have provided detailed evidence of their rights in KENT, KENT RO and KENT formative trademarks in various classes before the Trade Mark Registry, India, the earliest registrations for which date back to 1994 (Registration No. 632891 dated July, 4, 1994, in class 9) and 1999 (Registration No. 883459 dated October, 26, 1999, in class 7) well before the Respondent registered the disputed domain name on March 19, 2016. The Panel observes that the Complainants have also placed on record trademark registrations and applications for KENT and KENT formative trademarks in various countries across the globe. Valid and subsisting trademark registrations constitute prima facie evidence of ownership, validity and the exclusive right of use of said trademark in connection with the stated goods and services. (See, Microsoft Corporation v. J. Holiday Co.,WIPO Case No. D2000-1493). The Panel observes that the disputed domain name WIPO Overview 3.0, section 1.8 clearly sets out that “[w]here the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.” The Panel finds that the addition of an ordinary descriptive word “service” to the trademark KENT / KENT RO of the Complainants does not avoid a finding of confusing similarity between the disputed domain name and the Complainants’ trademark. See, Sony Kabushiki Kaisha v. Inja Kil,WIPO Case No. D2000-1409. The Panel accordingly finds that the requirement of paragraph 4(a)(i) of the Policy stands satisfied by the Complainants. B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy requires the Complainants to show that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel notes that the Complainants have already submitted evidence that they hold exclusive rights in the KENT and KENT formative trademarks by virtue of registrations in their favour. The Panel observes that the Complainants also own domain names comprising of the trademark KENT which too pre-date the date of registration of the disputed domain name by the Respondent. More specifically, it is noted that the Complainants’ domain name The Panel is therefore satisfied that the Complainant has made out a prima facie case 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 Respondent has failed to produce any countervailing evidence of any rights or legitimate interests in the disputed domain name and hence, the Complainants 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. As the Respondent was duly notified of the Complaint and has chosen not to rebut it on the 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 has perused the extracts of the Respondent’s website hosted on the disputed domain name attached as Annex 26 to the Complaint and it seems that the website is owned or somehow related to a company called “Aqua Fresh RO Solution Company”. On the other hand, according to the Registrar verification report and the WhoIs records, the Respondent is called “Aditya Kumar, Kent”. Based on the foregoing, there is no evidence, which could lead the Panel to conclude that the Respondent is commonly known by the disputed domain name. See section 2.3 of the WIPO Overview 3.0. The Complainants through Annex 27 of the Complaint have effectively demonstrated that the disputed domain name resolves to a commercial website wherein unauthorized products are being advertised and sold. On a review of the evidence presented by the Complainants, the Panel finds that the overall look and feel of the Respondent’s website coupled with the prominent display of the Complainants’ trademarks on the said website, Internet users could easily be confused into assuming that the Respondent’s website is affiliated with or has the endorsement or sponsorship of the Complainants, and that the products being offered on the said website are indeed original goods of the Complainants. See, Levantur, S.A. v. Media Insight,WIPO Case No. D2008-0774. Further, in light of said evidence and in the absence of any explanation by the Respondent, there is a strong chance that the products being sold on the website hosted on the disputed domain name are counterfeit or knock off versions of the Complainants’ products. The Panel finds that the Respondent’s registration and use of the disputed domain name for a commercial website advertising, offering and selling unauthorized / counterfeit products under the KENT trademarks does not constitute a bona fide use 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. See, Jeanne Lanvin v. Irene Reed,WIPO Case No. D2008-0774. On the contrary, the Panel finds that the Respondent had registered the disputed domain name in order to exploit and profit from the Complainants’ rights in the KENT trademark and to disrupt their business activities. Accordingly, the Panel finds that the Complainants has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires the complainant to show that the respondent has registered and is using the disputed domain name in bad faith. According to section 3.1.4 of the WIPO Overview 3.0, the mere registration of a domain name that is identical to a famous or widely known trademark by an unaffiliated entity can by itself create a presumption of bad faith. The disputed domain name According to the Policy, bad faith is understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant’s trademark (see section 3.1 of the WIPO Overview 3.0). The Panel concludes that the Respondent is clearly aware of the goodwill and reputation associated with the Complainants’ trademarks and had registered the disputed domain name The Panel notes that the Respondent has not challenged the Complainants’ characterization of the Complainants’ products as being unauthorized or fake. Under paragraph 4(b)(iv) of the Policy, there is deemed evidence of registration and use of a domain name in bad faith where it is found that the Respondent has intentionally attempted to attract Internet users for commercial gain to its website by creating a likelihood of confusion as to source, sponsorship, affiliation or endorsement. The Panel agrees that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the disputed domain name by confusing them into thinking that the Respondent has some affiliation or connection with the Complainants such that is authorized or at the least has some arrangement with the Complainants to offer, advertise and sell KENT branded products. See, Bayerische Motoren Werke AG v. Domain Administrator, See PrivacyGuardian.org / Chris Pointon,WIPO Case No. D2018-1143 and LEGO Juris A/S v. Thai Dang,WIPO Case No. D2018-1929. This is evidence of registration and use in bad faith pursuant paragraph 4(b)(iv) of the Policy. The Panel finds that the Respondent’s activities disrupt the Complainants’ business and unfairly competes with the Complainants by using the disputed domain name to advertise/offer/sell unauthorized and counterfeit products that compete with the Complainants’ genuine products resulting in loss of sales and damage to goodwill. See, BMW v. Codesoft Technologies, WIPO Case No. D2018-1160. The Respondent’s conduct therefore constitutes bad faith under paragraph 4(b)(iii) of the Policy. The Panel agrees that the Respondent has acted contrary to his representation and warranty in Clause 2 of the Registrar’s Registration Agreement, attached as Annex 2 to the Complaint that the registration of the disputed domain name Accordingly, having regard to the circumstances of this particular case, the Panel holds that the Complainants have discharged the burden of proof under paragraph 4(a)(iii) of the Policy. Therefore, the Panel finds that the disputed domain name 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 Shwetasree Majumder
Sole Panelist
Date: May 8, 2020
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