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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Howden Joinery Limited v. Ahmad Fanani - PT. Kentdevon Industries

Case No. D2014-0876

1. The Parties

The Complainant is Howden Joinery Limited of London, United Kingdom of Great Britain and Northern Ireland ("UK"), represented by Rouse Legal, UK.

The Respondent is Ahmad Fanani - PT. Kentdevon Industries of Jepara, Jawa Tengah, Indonesia.

2. The Domain Names and Registrar

The disputed domain names <howdenkitchenreview.com>, <howdenkitchenreviews.com>, <howdenkitchensreview.com>, <howdenkitchensreviews.com>, <howdenskitchenreview.com>, <howdenskitchensreviews.com> are registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 23, 2014. On May 26, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On May 27, 2014, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 30, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was June 19, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 20, 2014.

The Center appointed Peter Rindforth as the sole panelist in this matter on June 24, 2014. 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.

The Panel shall issue its Decision based on the Complaint, the Policy, the Rules, the Supplemental Rules, and without the benefit of any Response from the Respondent. The case before the Panel was conducted in the English language.

4. Factual Background

The Complainant is the owner the trademarks HOWDENS and HOWDENS KITCHENS, registered as:

UK National trademark registration No. 2626504 for HOWDENS (word), registered on November 2, 2012, for goods and services in Classes 6, 19, 20, 35 and 42;

UK National trademark registration No. 2626501 for HOWDENS KITCHENS (word), registered on November 2, 2012, for goods and services in Classes 6, 19, 20, 35 and 42;

Community Trademark Registration (CTM) No 11463577 for HOWDENS (word), registered on June 10, 2013 for goods and services in Clauses 6, 19, 20, 35 and 42;

Community Trademark Registration (CTM) No 011463593 for HOWDENS KITCHENS (word), registered on June 10, 2013 for goods and services in Clauses 6, 19, 20, 35 and 42.

The disputed domain name <howdenskitchensreviews.com> was registered on March 8, 2014, and the disputed domain names <howdenkitchenreview.com>, <howdenkitchenreviews.com>, <howdenkitchensreview.com>, <howdenkitchensreviews.com>, and <howdenskitchenreview.com> were registered on March 13, 2014.

No detailed information is provided about the Respondent's activities, apart from what is mentioned above under Procedural History, and below by the Complainant.

5. Parties' Contentions

A. Complainant

The Complainant informs that it was founded in 1953, and carries on business in the UK in relation to the supply of kitchen furniture and associated joinery and appliances. The Complainant has a turnover of more than GBP 950,000,000, with over 560 depots nationwide and employing around 6,500 people. Each year the Complainant supplies over 3,500,000 kitchen cabinets and 350,000 completed kitchens.

The trademarks HOWDENS and HOWDENS KITCHENS are among the most valuable of the Complainant's assets, and there exists a substantial reputation and goodwill in the trademarks.

The Complainant operates a website at "www.howdens.com", but also owns a number of other domain names that incorporate the trademark, such as <howden.kitchen>, <howdenjoinerykitchenreview.com>, and <howdensreview.co.uk>.

The Complainant refers to another domain name, <howdenskitchensreviews.co.uk>, which was, according to the Complainant, registered on February 18, 2014 in the name of the Respondent and resolved to a web page purporting to review the Complainant's products. That site was displaying predominantly negative reviews written in an aggressive rhetoric and targeted specifically at the Complainant's business. The site included images from the Complainant's own website. The site also included comments/replies from a person called "one of Howdens company sales representatives", however the Complainant states that the said person is not working at the Complainant.

The Complainant also refers to that various forum and social networking websites have receiving "spam" from the Respondent's domain name <howdenskitchensreviews.co.uk> to generate links to the said domain name and thereby falsely increase the relevance of the said domain name in search results.

The Complainant informs that the Respondent has registered a number of other domain names targeting other well-known kitchen manufacturers and suppliers, used for the same type of negative comment web sites.

The Complainant states that the Respondent, according to investigations made on behalf of the Complainant, is an employee of a company called PT Kentdevon Industries, a supplier of kitchen furniture. The Complainant therefore concludes that the website related to <howdenskitchensreviews.co.uk> was set up by a competitor for the purpose of discrediting the Complainant's business.

The Complainant argues that the disputed domain names <howdenskitchensreviews.com>, <howdenkitchenreview.com>, <howdenkitchenreviews.com>, <howdenkitchensreview.com>, <howdenkitchensreviews.com> and <howdenskitchenreview.com> are all confusingly similar to the Complainant's trademarks, as each of them contains the words HOWDEN, HOWDENS, KITCHEN and KITCHENS in various combinations.

The Complainant states that the Respondent has no rights or legitimate interests in any of the disputed domain names. They are not used in connection with a bona fide offering of goods or services, the Respondent is not commonly known by the disputed domain names, and the Respondent is not making any legitimate noncommercial or fair use of the disputed domain names.

Although <howdenskitchensreviews.com>, <howdenkitchenreview.com>, <howdenkitchenreviews.com>, <howdenkitchensreview.com>, <howdenkitchensreviews.com> and <howdenskitchenreview.com> do not currently resolve to live web sites, it is clear that they are closely connected with the domain name resolving to the web site "www.howdenskitchensreviews.co.uk", which is used to tarnish the reputation of the Complainant's trademarks for the commercial gain of the Respondent's company PT Kentover Industries.

Finally, the Complainant contends that the disputed domain names were registered and are being used in bad faith.

The Complainant's trademarks are well known in the UK, the Respondent is the registrant of <howdenskitchensreviews.co.uk>, and the Complainant's cease and desist letter regarding the ".co.uk" domain name predating the registration of the now disputed domain names. The Respondent has also targeted other well-known kitchen manufacturers be registering similar domain names to their own.

Bad faith use is shown, according to the Complainant, by the facts that they are registered shortly after receiving the cease and desist letter, that they are used in a spamming activity generating links to the Respondent's web site, and their close similarity both to the Complainant's domain names as well as to each other.

The Complainant requests that the Panel issue a decision that the disputed domain names being transferred to the Complainant.

B. Respondent

The Respondent did not reply to the Complainant's contentions.

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the Complainant must prove each of the following:

(i) that the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain names; and

(iii) that the disputed domain names have been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant is the owner the trademarks HOWDENS and HOWDENS KITCHENS, registered as national UK trademarks, as well as Community Trademarks (covering the European Union.).

The relevant parts of the disputed domain names are "howdenskitchensreviews", "howdenkitchenreview", "howdenkitchenreviews", "howdenkitchensreview", "howdenkitchensreviews" and "howdenskitchenreview", as it is well established in previous UDRP decisionsthat the added op-Level Domain – being a required element of every domain name – may be irrelevant when assessing whether or nota domain name is identical or confusingly similar to a mark.

The Panel notes that all disputed domain names consists of the Complainant's trademark HOWDENS (with or without the letter "s"), followed by the word "kitchen" (with or without the letter "s"), thereby also consisting of the Complainant's trademark HOWDENS KITCHENS, and all ended with the word "review" (in singular or plural).

Obvious misspelling – here when any part is written without the final letter "s", such as "howdenkitchenreview", "howdenkitchenreviews", "howdenkitchensreview", "howdenkitchensreviews" and "howdenskitchenreview" – is not enough to consider any of the disputed domain names different enough to avoid confusion.

The word "kitchen/s" is directly related both to the Complainant's goods, as well as to the Complainant's trademark HOWDENS KITCHENS.

Further, the addition of the word "review" / "reviews" may be seen as directly related to the trademarks, where the trademark related part of the disputed domain names explain the focus of the "review/s".

The Panel therefore concludes that <howdenkitchenreview.com>, <howdenkitchenreviews.com>, <howdenkitchensreview.com>, <howdenkitchensreviews.com>, <howdenskitchenreview.com> and <howdenskitchensreviews.com> are all confusingly similar to the Complainant's trademarks HOWDENS and HOWDENS KITCHENS and thus, the Complainant has satisfied the first element of the Policy.

B. Rights or Legitimate Interests

Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 2.1.

This Panel is satisfied that the Complainant has established a prima facie case. By not submitting a Response, the Respondent has failed to invoke any circumstance which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name, or to rebut the prima facie case that the Complainant has established under this paragraph of the Policy.

The Respondent is not an authorized agent or licensee of the Complainant's goods and has no other permission to apply for any domain names incorporating the trademarks HOWDENS or HOWDENS KITCHENS. The Respondent is not using or preparing to use the disputed domain names for a bona fide offering. See Six Continents Hotels, Inc. v. Patrick Ory, WIPO Case No. D2003-0098 ("There is no evidence of any commercial relationship between the Complainant and the Respondent which would entitle the Respondent to the mark. Consequently, the Panel concludes that the Respondent has no rights nor legitimate interests in the Domain Name given there exists no relationship between the Complainant and the Respondent that would give rise to any license, permission or authorization by which the Respondent could own or use the Domain Name.")

There is nothing in the Respondent's name that indicates it may have become commonly known by the disputed domain names, enabling it to establish a legitimate interest in the disputed domain names thereby, nor any evidence in the present record to indicate that the Respondent is making any legitimate noncommercial or fair use of any of the disputed domain names. See Compagnie de Saint Gobain v. Com-Union Corp, WIPO Case No. D2000-0020 (finding no rights or legitimate interests where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).

The Panel finds that the Respondent has no rights or legitimate interests in any of the disputed domain names and thus, the Complainant has satisfied the second element of the Policy.

C. Registered and Used in Bad Faith

The Complainant's trademarks HOWDENS and HOWDENS KITCHENS are registered in the UK and the European Union, whereas the Respondent's registered address is in Indonesia.

However, as shown by the Complainant, the Respondent and the Complainant have been involved in a ".co.uk" domain name dispute prior to the Respondent's registration of the disputed domain names, and the Respondent has received and replied to a cease and desist letter from the Complainant, shortly before the registration of <howdenskitchensreviews.com>, <howdenkitchenreview.com>, <howdenkitchenreviews.com>, <howdenkitchensreview.com>, <howdenkitchensreviews.com> and <howdenskitchenreview.com>.

The Panel therefore concludes that all of the disputed domain names are registered in bad faith, with full knowledge of the Complainant's prior trademark rights.

As to the use of the disputed domain names, the Panel notes that there is no evidence that they are in so-called active use (e.g., resolving to a website), and there has not been any active attempt to sell or to contact the Complainant in relation to any of the disputed domain names.

However, passive holding does not as such prevent finding of bad faith. All circumstances of the case must be examined to determine whether the Respondent is acting in bad faith.

The Panel hereby takes into consideration that:

- The Respondent has not filed any response to the Complaint;

- The Respondent has previously registered and used a domain name similar to the now disputed domain names, under the .co.uk name space, for a web site that was seemingly presented as a criticism site, but also involving fake comments falsely related to one of the Complainant's sales representatives;

- The Respondent registered the disputed domain names shortly after receiving a cease and desist letter from the Complainant, related to the registration and use of the .co.uk domain name;

- The Respondent has registered and used similar domain names consisting of other kitchen manufacturers, thereby indicating a bad faith habit.

The Complainant has stated that the Respondent is an employee of a competitor to the Complainant, indicating that the purpose of registration of the disputed domain names was to use them to discredit the Complainant's business. The Complainant stated in the Complaint that it received a response to the cease and desist letter addressed to Mr. Fanani from a Mr. Foster. Shortly after, the websites at the disputed domain names were temporarily suspended, but reappeared again in April 2014 in substantially the same form via different content. The Complainant's investigations concluded that the disputed domain names were being operated by an Indonesian national, who is an employee of a company called PT Kentdevon Industries, a supplier of kitchen furniture (being a competitor of the Complainant.)

Although the Panel cannot find that the Complainant has managed to prove any such relationship based in the limited record before the Panel, it cannot be excluded that the main reason for the Respondent's registration of <howdenskitchensreviews.com>, <howdenkitchenreview.com>, <howdenkitchenreviews.com>, <howdenkitchensreview.com>, <howdenkitchensreviews.com> and <howdenskitchenreview.com> was to use them in a, for the Complainant, detrimental way, not related to any real free speech from ordinary customers. See Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574 ("There remains the question of whether the domain names are being used in bad faith. There is no active use of the domain names in the sense that they resolve to an active web site. Nevertheless the circumstances of the registration of the domain names and Respondent's US trade mark application are indicative of his intention to hold the trade mark and the domain names for some future active use in a way which would be competitive with or otherwise detrimental to Complainant.")

Considering all facts and circumstances in this case, the Panel concludes that the disputed domain names were both registered and are being used in bad faith, and thus, the Complainant has satisfied the third element of the Policy.

Therefore, this Panel finds that the Complainant has succeeded in proving the three elements within paragraph 4(a) 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 names <howdenkitchenreview.com>, <howdenkitchenreviews.com>, <howdenkitchensreview.com>, <howdenkitchensreviews.com>, <howdenskitchenreview.com> and <howdenskitchensreviews.com> be transferred to the Complainant.

Peter Rindforth
Sole Panelist
Date: July 7, 2014

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