The Complainant is Khadi & Village Industries Commission, India, represented by Fidus Law Chambers, India.
The Respondent is Lakshmi Saya, United States of America.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2021. On December 2, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 3, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 14, 2021, 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 amended Complaint on December 15, 2021.
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 of the Complaint, and the proceedings commenced on December 20, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 9, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 12, 2022.
The Center appointed Dawn Osborne as the sole panelist in this matter on January 31, 2022. 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 BackgroundThe Complainant is the owner of the mark KHADI registered, inter alia, in India as trade mark no 2851543 for clothing registered on November 27, 2014.
The Domain Name registered on December 22, 2016 has been used for competing pay-per-click links and has been offered for sale.
5. Parties’ Contentions A. ComplainantThe Complainant is the owner of the mark KHADI registered, inter alia, in India for clothing with first use recorded as 1956.
The Domain Name registered in 2016 is confusingly similar to the Complainant’s mark adding only the word “clothes” and the generic Top-Level Domain (“gTLD”) “.com” which do not prevent a finding of said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it, and is not authorised by the Complainant to use any of its marks in any way.
The Domain Name has been used for competing pay-per-click links and offered for sale generally. Neither of these circumstances shows a bona fide offering of goods or services or a legitimate non-commercial or fair use.
The Respondent has acted in bad faith by using the Domain Name for competing pay-per-click links diverting Internet users for commercial gain with actual knowledge of the Complainant’s rights.
The Domain Name also points to a page indicating that the Domain Name is for sale which shows that the Respondent’s primary aim is to sell the Domain Name for a sum in excess of out of pocket registration costs because it contains the Complainant’s mark and exploits the Complainant’s reputation and goodwill.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarThe Domain Name consists of the Complainant’s KHADI mark (registered, inter alia, in India for clothing as indicated above in section 4), adding only the term “clothes” and the gTLD “.com”.
Previous panels have found confusing similarity when a respondent merely adds a term and a gTLD to a Complainant’s mark. Accordingly, the Panel agrees that the addition of the term “clothes” and the gTLD “.com” does not prevent a finding of confusing similarity between the Domain Name and the Complainant’s registered trade mark.
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
B. Rights or Legitimate InterestsThe Complainant has not authorised the Respondent to use its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name.
The Domain Name is currently being offered for sale on a holding page. The Respondent has also used the Domain Name for links offering competing products with the Complainant. It did not make it clear that there was no commercial connection with the Complainant. These uses are not a bona fide offering of goods or services or a legitimate non-commercial or fair use.
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name including the Complainant’s mark with a reputation for clothing or rebutted the Complainant’s evidence of the Respondent’s use of the Domain Name.
As such the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
C. Registered and Used in Bad FaithThe Complainant’s mark has a reputation for clothing and is distinctive and the use of the word “clothes” in the Domain Name makes it more likely than not that the Respondent had actual knowledge of the Complainant, its marks, business and services.
The Domain Name is being offered for sale which has been held by previous UDRP panels to be an indication of registration and use in bad faith.
In addition, use for competing pay-per-click links indicates bad faith being disruptive of the Complainant’s business and diverting customers for commercial gain and also indicates actual knowledge of the Complainant and its business.
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and is being used in bad faith and has satisfied the third limb of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name,
Dawn Osborne
Sole Panelist
Date: February 7, 2022