WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Thomasville Furniture Industries, Inc. v. Reynard Candra
Case No. D2010-1283
1. The Parties
The Complainant is Thomasville Furniture Industries, Inc. of United States of America, represented by Kilpatrick Stockton LLP of United States of America.
The Respondent is Reynard Candra of Indonesia.
2. The Domain Name and Registrar
The disputed domain name <hickorychairfurniture.net> (the “Domain Name”) is registered with Melbourne IT Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 30, 2010. On August 2, 2010, the Center transmitted by email to Melbourne IT Ltd. a request for registrar verification in connection with the disputed domain name. On August 3, 2010, Melbourne IT Ltd. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 11, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 31, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 6, 2010.
The Center appointed Charters Macdonald-Brown as the sole panelist in this matter on September 14, 2010. 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 Complainant is the owner of the registered trade mark HICKORY CHAIR with registration number 985,949, which was registered on June 11, 1974 at the United States Patent and Trademark Office.
The Complainant indicates that it applied for the trade mark HICKORY CHAIR in class 20 in Indonesia on July 20, 2010 It is inferred that this application was made because the Respondent is based in Indonesia. However, the date of this application is after the Domain Name was registered and there is no certainty that the application will proceed to registration.
The Complainant has not claimed any rights in unregistered trade marks.
The Complainant claims ownership of the domain name <hickorychair.com>, however the WhoIs information provided as Exhibit F to the Complaint states that the registrant of this domain name is “Henredon Furniture Ind Inc.” The Complainant does not detail the relationship between itself and “Henredon Furniture Ind Inc.” In accordance with the ability of the Panel to carry out limited factual research, a list of Furniture Brand International brands was located on the website at “www.furniturebrands.com”. These brands include Henredon and Hickory Chair, however, as the relationship between “Henredon Furniture Ind Inc.” has not been fully explained or verified, the Panel is unable to give any weight in its decision making process to the claim that the Complainant owns the domain name <hickorychair.com>.
The Domain Name was registered by the Respondent on May 22, 2010.
5. Parties’ Contentions
The Complainant has rights in the United States registered trade mark HICKORY CHAIR and claims that the mark has acquired a high degree of public recognition and distinctiveness. The Complainant claims that the Domain Name is confusingly similar to its HICKORY CHAIR registered mark. The Complainant further claims that the Respondent cannot demonstrate or establish any rights or legitimate interests in the Domain Name; there is no relationship between the Complainant and the Respondent; and the Respondent is not using the Domain Name in connection with a bona fide offering of goods or services nor making a legitimate noncommercial or fair use of the Domain Name.
Consequently, the Complainant claims that the Respondent has registered and is using the Domain Name in bad faith. This claim is inferred from the similarity of the registered mark HICKORY CHAIR to the Domain Name, the content available on the website at the Domain Name and because the Domain Name is being used to divert web traffic for profit by causing a likelihood of confusion with the Complainant’s registered mark HICKORY CHAIR.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Domain Name contains the whole of the Complainant’s registered trade mark HICKORY CHAIR. As set out in Sony Kabushiki Kaisha (also trading as Sony Corporation) v Kil Inja, WIPO Case No. D2000-1409, the addition of an ordinary descriptive word (in this case “furniture”) either as a prefix or suffix and the addition of the suffix “.net” will not detract from the overall impression of the dominant part of a domain name (that is, the HICKORY CHAIR elements). A reader of the Domain Name is likely to think the Domain Name is associated with the Complainant.
Consequently, the Panel finds that the Domain Name is confusingly similar to the Complaint’s HICKORY CHAIR registered mark.
B. Rights or Legitimate Interests
The Panel has considered the Complainant’s allegation that the Respondent does not have any rights or legitimate interests in respect of the Domain Name. There is no relationship between the Complainant and the Respondent and the Respondent has not been authorised or licensed in any way to use the registered trade mark HICKORY CHAIR. The Respondent’s website features pictures of the Complainant’s goods and “sponsored” advertising links, and does not appear to engage in the business of selling products or services directly. Since the Respondent has not submitted any response, these allegations have not been contested.
Because it is generally difficult for the Complainant to prove the fact that the Respondent does not have any rights or legitimate interests in the Domain Name definitively, (while the Respondent at the same time is given ample opportunity to demonstrate an such rights or legitimate interest pursuant to paragraph 4(c) of the Policy), previous decisions under the UDRP have found it sufficient for the Complainant to make a prima facie case for its assertion thus shifting the responsibility to come forward with evidence of any such rights or legitimate interests to the Respondent. See, Document Technologies, Inc. v. International Electronic Communications Inc, WIPO Case No. D2000-0270. In this case, the Respondent has not filed any Response to rebut the Complainant’s evidence and allegations.
The Panel concludes that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
The Panel has considered the Complainant’s assertions and evidence with regard to the Respondent’s registration and use of the Domain Name in bad faith. By not submitting a Response, the Respondent has failed to invoke any circumstances that could demonstrate that the Respondent did not register and use the Domain Name in bad faith.
The Policy paragraph 4(b) sets out four non-exclusive illustrations of situations that may be deemed to reflect “bad faith” registration and use of a domain name. The Panel finds that one of these has been established, i.e. attempting to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of endorsement of the Respondent’s website.
The Domain Name has been used by the Respondent to direct Internet users to a website with “sponsored” links to competitors of the Complainant. The Respondent is assumed to be deriving a financial benefit from web traffic diverted through the Domain Name to the “sponsored” links. The Panel finds that this use of the Domain Name is for commercial gain and reflects the Respondent’s attempt to attract users to its website by improperly associating itself with the registered trade mark HICKORY CHAIR or misleadingly suggesting an affiliation with, or sponsorship by, the Complainant.
The fact that the “sponsored” links provided at the Domain Name website are for furniture products similar to those provided by the Complainant and that the website features images apparently taken from the Complainant’s website allows the Panel to infer that the Respondent knew about the Complainant, its website, and/or the registered trade mark HICKORY CHAIR.
Once all these circumstances have been taken into account, the Panel finds that the Respondent registered and used the Domain Name in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <hickorychairfurniture.net> be transferred to the Complainant.
Dated: September 28, 2010