WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
KEEN, Inc. v. Mohammad Reiva Mureza / PT. Keen Indonesia
Case No. D2015-1892
1. The Parties
The Complainant is KEEN, Inc. of Portland, Oregon, United States of America, internally represented.
The Respondent is Mohammad Reiva Mureza of Tangerang, Indonesia / PT. Keen Indonesia of Jakarta, Indonesia represented by Kantor Advokat Turman M. Panggabean, SH.,MH. & Rekan, Indonesia.
2. The Domain Name and Registrar
The disputed domain name <keen-indonesia.com> is registered with PT Ardh Global Indonesia (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 22, 2015. On October 23, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 26, 2015 and October 29, 2015, 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 October 30, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 19, 2015. The Response was filed with the Center on November 18, 2015.
The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on November 23, 2015. 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 has manufactured and sold outdoor and active footwear since 2003, backpacks and bags since 2007, and outdoor and leisure clothing since 2013. The Complainant first used the mark KEEN on footwear in March 2003. The Complainant has been active on the Internet since April 2003 when it registered the domain name <keenfootwear.com>. The Complainant has seen very substantial growth in its business, with combined sales of just under USD 100 million, exclusively in North America, by the end of its financial year 2005. The Complainant first reported sales in the Asia Pacific region in financial year 2012 amounting to USD 230,092, rising to USD 4.5 million in 2013 and to USD 20.1 million in 2014. Between 2003 and 2005 the Complainant spent USD 3.3 million on advertising, rising to USD 17.3 million in 2014. The Complainant maintains some 26 country-focused e-commerce sites, has a global dealership network featuring multiple countries and its own retail stores in the United States of America ("USA"), Japan and the Czech Republic.
The Complainant is the owner of multiple registered trademarks worldwide, a number of which pre-date the disputed domain name, including USA registered trademark no. 2916603 for the word and design mark KEEN, filed on October 4, 2002 and registered on January 4, 2005 in international class 25 (footwear).
The disputed domain name was created on November 13, 2006. The Response states that the registrant of the disputed domain name is a web developer who registered the disputed domain name for its customer Pt. Keen Indonesia, a company incorporated on November 25, 2005. As discussed below, Pt. Keen Indonesia will be treated as the Respondent in this case.
The Respondent's business appears to use the mark KEEN for the manufacture and sale of clothing and outdoor gear. It has registered a variety of trademarks in Indonesia incorporating this mark. The disputed domain name points to a website offering outdoor and adventure goods for sale.
The information available from the Response and annexed documentation regarding the Respondent's trademarks is somewhat superficial and the associated certificates are confusing, particularly as these have not been translated and are in the Indonesian language. Nevertheless, the Panel has identified that a person named Mr. Arif, whom the Respondent describes as the owner of the Respondent company, applied for a range of KEEN trademarks on February 24, 2005 including combined word and device marks for KEEN (mark Nos. IDM000096012, IDM000096013, and IDM000096014 in classes 22, 35 and 18 respectively) and for KEEN KIDS (mark No. IDM000096011) all of which were registered on November 10, 2006. The Respondent claims to have applied for an even earlier mark (No. IDM000152638) on February 24, 2004 but given that this mark has an application number which follows consecutively one of the marks applied for on February 24, 2005, the Panel assumes that the earlier date is a typographical error. In any event, the mark concerned was not registered until January 16, 2008.
The Parties' respective logos bear some similarity which is evident from a side-by-side comparison:
The Complainant states that it has commenced a legal proceeding in Indonesia against the owner of "certain Indonesia trademark registrations". This action appears to have been brought against Mr. Arif, the owner of the Respondent. The Respondent acknowledges the existence of the action and requests that the issue remain before the Indonesian courts. The Respondent produces what appears to be the front page of the court papers, bearing a court stamp dated November 3, 2015.
5. Parties' Contentions
The Complainant contends that the disputed domain name is confusingly similar to a trademark in which the Complainant owns rights; that the Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
The Complainant notes that the disputed domain name contains the Complainant's KEEN trademark in its entirety together with a geographic designation. The Complainant submits that previous panels have found that domain names in this format are confusingly similar to the incorporated trademark. The Complainant adds that confusion may be increased by the presence of the geographic descriptor given the Respondent's use of the disputed domain name for services nearly identical to those of the Complainant along with bricks and mortar stores in Indonesia. The Complainant asserts that the use of the disputed domain name by the Respondent in conjunction with a confusingly similar logo to that of the Complainant creates an overall impression that the disputed domain name is connected to the Complainant's trademark.
The Complainant notes that it has never authorized the Respondent to register or use its KEEN trademarks in any manner whatsoever and that this on its own may be held sufficient for a finding of no rights or legitimate interests in the disputed domain name. The Complainant asserts that the Respondent is using the disputed domain name in connection with a website which offers for sale products similar to and competitive with the Complainant's products and has used the Complainant's trademark to create a false impression that the Respondent is associated with the Complainant. The Complainant submits that this is a parasitic use which relies on instigating user confusion and does not constitute fair use.
The Complainant submits that to its knowledge the Respondent has never acquired any trademark rights in the disputed domain name. The Complainant states that the registrant of the disputed domain name is not a business with "Keen" or any similar word in its name and that given the Complainant's use of the KEEN trademark beginning in 2003 and with trademark registrations proceeding from 2004 it is inconceivable that the Respondent chose the disputed domain name without knowledge of the Complainant's activities, name and trademark. The Complainant cites previous cases under the Policy as authority for the proposition that the registration of a domain name incorporating a highly publicized mark belonging to a third party suggests opportunistic bad faith.
The Complainant asserts that there is no explanation for the Respondent's use of the disputed domain name other than that the Respondent is intentionally trying to confuse Internet users and create a false impression that the Respondent is associated with the Complainant in order to profit from the goodwill of the Complainant's marks. The Complainant adds that the Respondent has posted misleading information on social media indicating that it is an authorized dealer/distributor of KEEN KIDS outdoor goods, which the Complainant says is not the case.
The Complainant submits that the Respondent is aware that its actions have created actual consumer confusion regarding the Parties' relationship. The Complainant goes on to say that its Indonesian counsel hired an investigator who dialed the telephone number on the contact page of the Respondent's website and was told by the person who answered "This is Keen Indonesia, not Keen USA". The Complainant asserts that the use of the disputed domain name in connection with the sale of products competitive with those of the Complainant constitutes use in bad faith as the disputed domain name is designed and is likely to attract Internet users who are looking for the Complainant's products, causing confusion and diverting such users away for commercial gain.
Before setting out the Respondent's contentions, the Panel notes that while the Response is prepared in English it appears that this is not the author's first language and/or that the author has chosen to prepare the Response in a note format which leaves out certain words and uses on occasion unfamiliar and non-idiomatic phrases. The Panel nevertheless has done its best to understand and summarize the Respondent's submissions within the context of that limitation.
The Respondent contends that the Complaint should be denied as the disputed domain name was registered in good faith without intent to violate any laws or infringe third party rights. The Respondent contends that the disputed domain name derives from the Respondent's company name, the latter dating from 2005 and is appropriately used by the Respondent. The Respondent states that it has been using the name "Keen" since late 2002 for the sale of jackets, bags, socks, sandals, sleeping bags, pouches and similar items. The Respondent notes that it received advice from a friend in 2004 and thereafter applied to register the trademarks KEEN and KEEN KIDS in Indonesia in 2005 in respect of various goods and services including international class 18 (purses, wallets, suitcases etc.), class 22 (stuff sacks, plastic, rope etc.) and class 25 (all kinds of apparel for men, women and children).
The Respondent submits that the brands KEEN and KEEN KIDS were created from common dictionary words, meaning "intelligent, smart, sharp or fabulous" and "smart kids" respectively, and asserts that these cannot be monopolized as a famous brand by the Complainant or anyone else. The Respondent points out that the Complainant only registered its USA trademark on January 4, 2005 for footwear only and that the average date for its registration of marks in other countries is 2010 and in Indonesia is 2014.
The Respondent asserts that after almost ten years and considerable cost to promote its KEEN and KEEN KIDS brands these are well-known by the Indonesian public. To illustrate this, the Respondent provides photographs showing its participation in an exhibition, advertisements in the National Geographic Indonesia (March 2015 edition) and Commando (edition not possible to date) magazines, an advertisement on a billboard, photographs illustrating participation of the brand in various outdoor pursuits and engagement in social activities and photographs of retail stores bearing the KEEN brand.
The Respondent states that in 2004 the Complainant's brand was not known in Indonesia or in the Complainant's country of origin. The Respondent asserts that its use of the disputed domain name is made in good faith without intent to imitate the domain name of any other party and required no permission or consent of any party including the Complainant. The Respondent notes the existence of other companies in the USA who use the domain names <keen.com> (registered June 18, 1997) and <keenkids.com> (registered August 22, 2003) thus using these terms without the addition of other words. The Respondent notes that other companies exist which use these terms with additional words.
The Respondent submits that it is reasonable for it to use the word "Indonesia" in the disputed domain name as this shows and proves its products come from that country. The Respondent asserts that the use of KEEN with "Indonesia" has "character and uniqueness". The Respondent contends that the disputed domain name has been very widely recognized in Indonesia.
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.
A. Preliminary Issue: Language of the Proceedings
The Panel notes for completeness that the Complaint contained a submission calling for the language of the administrative proceeding to be English, on the basis that the Complainant had been unable to identify the language of the Registration Agreement but suspected that this would be Indonesian. In any event, the Registrar confirmed during the verification process that the language of the Registration Agreement was English. Accordingly, following the usual approach set out in terms of paragraph 11 of the Rules, the Panel determines that the language of the administrative proceeding shall be English.
B. Preliminary Issue: Respondent Identity
The Complaint is directed against Mohammad Reiva Mureza, the registrant of the disputed domain name as listed on the WhoIs record. This person is, prima facie,the correct Respondent on the basis that paragraph 1 of the Rules defines the Respondent as "the holder of a domain-name registration against which a complaint is initiated". However, notwithstanding the fact that the Complaint describes Mr. Mureza as "not a business with 'KEEN' or any word similar to 'KEEN' in its name", it is asserted in the Response that the business Pt. Keen Indonesia operates the website associated with the disputed domain name and trades online under the KEEN mark, and that the founder of that company, Mr. Arif, owns the Indonesian KEEN registered trademarks, while Mr. Mureza is merely the company's web designer who provided assistance with the registration of the disputed domain name. The Response seeks to reply to the Complainant's contentions on behalf of "our clients Muhammad Reiva Mureza / PT. Keen Indonesia" and refers indirectly on occasion to Mr. Arif, describing the latter as "the Company owner (Respondent)". Given the principal assertion that Pt. Keen Indonesia is the operator of the website associated with the disputed domain name, the main focus of the Response is on the history and activities of that company.
The question has arisen in the Panel's mind as to whether Pt. Keen Indonesia and/or Mr. Arif should be substituted as the Respondent in this case on the basis that either or both of them are the true registrant or beneficial owner of the disputed domain name. This Panel has recently considered a similar issue in the case of Richemont International S.A. v. Transfer Service, Sedo, WIPO Case No. D2015-1282. In that case, the Panel took the view that something more than mere assertion from a party is required before a registrant should be substituted with a third party as the respondent. It follows that a panel should also look for something more when considering whether to join or substitute a party who has merely been introduced in the response.
In the present case, the Panel is satisfied that the necessary additional information is present for it to make a substitution of Pt. Keen Indonesia for Mr. Mureza. It is clear to the Panel, as indeed it ought to have been clear to the Complainant, that the disputed domain name is used for the business operated by that company. Furthermore, so far as material to the issues between the Parties, the Response is made primarily for and on behalf of Pt. Keen Indonesia. Supportive evidence has been produced, namely the incorporation documents of that company which are accompanied by a description in the Response of its history and alleged online and offline activities under the Indonesian KEEN trademarks.
In all of these circumstances, the Panel will treat Pt. Keen Indonesia as the Respondent in this case on the basis that it is the underlying registrant of the disputed domain name. However, to assist the Registrar in implementing this decision should the Panel ultimately order a transfer of the disputed domain name, Mr Mureza's name will remain in its title.
C. Preliminary Issue: Concurrent Court Proceedings
The Complainant notes, and the Respondent confirms, that the Complainant has filed an action against Mr. Arif in the Commercial Court of the Central Jakarta District Court, Indonesia. The Complaint treats this as a separate but related matter given that the Complainant considers the Respondent to be Mr. Mureza and that the subject matter of the court action is the cancellation of Mr. Arif's Indonesian trademarks. The Response requests that "the issue remained [sic] with the judiciary in Indonesia".
Paragraph 18(a) of the Rules confers discretion upon the Panel to decide whether to suspend or terminate the administrative proceeding, or proceed to a decision, in the event of any legal proceedings initiated during an administrative proceeding in respect of a domain name dispute that is the subject of the complaint.
In the present case, neither of the Parties have indicated that the Indonesian litigation relates to or incorporates the domain name dispute that is the subject of the Complaint. At most, a challenge to the trademarks owned by Mr. Arif and used by the Respondent might be viewed as a related matter. Furthermore, the litigation has not been initiated by the Complainant against the Respondent in the present proceeding, whether the Respondent is considered to be Mr. Mureza or Pt. Keen Indonesia. In any event, this Panel is of the view that the Policy generally obliges a panel to make a decision on a complaint and accordingly will proceed to a Decision. The Panel need not concern itself with what may be done with the Decision after the Panel is functus officio and notes that it does not address its Decision to the attention of any other forum.
D. Identical or Confusingly Similar
The Complainant asserts that it has rights in its KEEN registered trademarks. The Respondent's submissions on this issue are somewhat contradictory in that it submits on the one hand that "keen" is a dictionary or common word which should not be capable of being monopolized by any party and on the other hand asserts Mr. Arif's rights in his Indonesian trademarks relating to the same word. The Panel has no reason to question the validity of the Complainant's trademarks on the sole basis that they relate to a common English word. Many common words may typically be registered as trademarks where, as here, the word is not descriptive of the goods and services to which the mark is applied, APPLE for computers being a famous example.
Comparing the Complainant's mark to the disputed domain name, the Panel notes that it is reproduced in its entirety together with the addition of the hyphen and geographic term "Indonesia". These additions are insufficient to prevent threshold Internet user confusion. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark and that the requirements of paragraph 4(a)(i) of the Policy have been satisfied.
E. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists several ways in which the Respondent may demonstrate rights or legitimate interests in the disputed domain name:
"Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(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".
The consensus of previous decisions under the Policy is that a complainant may establish this element by making out a prima facie case, not rebutted by the respondent, that the respondent has no rights or legitimate interests in a domain name. Where the panel finds that a complainant has made out such a prima facie case, the burden of production shifts to the respondent to bring forward evidence of such rights or legitimate interests.
The Panel is satisfied that the Complainant in the present matter has established the requisite prima facie case, which is based on its submissions that it has provided no authority to the Respondent to use its KEEN trademark and that the Respondent is using the disputed domain name to sell similar and competitive goods to those of the Complainant under that mark. Accordingly, the Panel turns to consider what evidence the Respondent has brought forward of rights and legitimate interests.
The Respondent's case is based on paragraph 4(c)(i) of the Policy, namely it alleges that it has made use of the disputed domain name in connection with a bona fide offering of goods and services before notice to it of the dispute. The Panel notes that the Respondent does indeed appear to be making an offering of goods via the disputed domain name. The question for the Panel is whether such offering is bona fide. If it is the case that the Respondent selected the disputed domain name to free ride on the goodwill of the Complainant's mark, in what the Complainant describes as a "parasitic use", or indeed to take any other unfair advantage of the Complainant's rights in the KEEN mark, the Panel considers that the online business operated by the Respondent would not constitute a bona fide offering of goods. If, however, as the Respondent contends, it selected the "Keen" moniker for its business and online brand name because it is a dictionary word which is suggestive of the outdoor and active life, entirely independently and without knowledge of the Complainant or intent to target it, then the Panel considers that this would fulfil the requirements of paragraph 4(c)(i) of the Policy. In these circumstances, the question of whether the Respondent arrived at the name "Keen Indonesia" for its business independently of any knowledge of the Complainant or its trademarks is a central issue.
At first sight, the Respondent's denial of knowledge of the Complainant might appear plausible. The Respondent is based in a jurisdiction in which the Complainant was not active when the Respondent incorporated its business in 2005. Furthermore, the Respondent's incorporation and its filing for corresponding trademarks are suggestive of legitimate business activities. On the other hand, the Complainant's case on this aspect is not implausible. The Respondent clearly has a command of English, access to the Internet and an interest in outdoor clothing. By 2005, the Complainant had established a healthy degree of fame for its KEEN mark, particularly in connection with its sales of outdoor footwear in the USA. The Complainant had achieved just under USD 100 million of sales and had spent some USD 3.3 million on global advertising for its KEEN trademark by the end of 2005. In terms of recognition from the marketplace for outdoor clothing, the Complainant had also been reported as the top selling men's and women's footwear brand in a specialty outdoor retail survey. These are all matters which might feasibly have come to the Respondent's attention.
One curious aspect of the Response is the Respondent's unsupported assertion that its outdoor clothing business commenced in 2002. It must have been obvious to the Respondent that if it was able to prove this the question of knowledge and targeting of the Complainant's mark would likely have fallen away because the Complainant's business did not begin until 2003. However, the Respondent has provided absolutely no evidence to support its assertion despite the fact that a wide variety of materials would have served to demonstrate it to the Panel's satisfaction; anything from original invoices to affidavits from suppliers or extracts from the volume of dated paperwork that businesses typically generate. Yet although this is the obvious lynchpin of any answer to the Complainant's case, the Respondent chooses to rely upon a bare assertion. This does not leave the Panel with any confidence as to the Respondent's credibility.
Of more fundamental concern to the Respondent's denial of knowledge of the Complainant or its trademarks is the similarity between the Parties' logos. There are no less than nine points of correspondence between these which are immediately obvious to the Panel. First, there is the use of a similar stylized typography; secondly, a yellow color has been selected for the font; thirdly, a black background has been selected for the logo; fourth, the word "KEEN" appears exclusively in capital letters; fifth, there is a yellow ellipsis around the word element; sixth, the outer edges of the first and last letter are constrained and shortened by the taper of the ellipsis; seventh, the word element expands to fill almost all the space within the ellipsis leaving only a small amount of padding or surrounding space; eighth, the top and bottom horizontal bars of each letter "E" are curved; and ninth, the outer edge of the letter "N" is curved inwards. On the other hand, there are only four obvious points of difference. First, the Complainant's stylized typeface splits each letter into two components while the Respondent's are joined; secondly, the Complainant's ellipsis has slightly flattened edges; thirdly, the vertical bar in the Complainant's letter "K" is curved to match the curve of the letter "N", while the Respondent's is straight; and fourth, the Complainant's ellipsis is angled slightly upwards to the right while the Respondent's is not angled. In the Panel's opinion, these points of difference are of less cumulative significance than the points of similarity. Considering all the similarities and differences, the Panel is of the view that the overall impression to a typical observer is most likely to be that the logos represent the same brand.
The Complainant's case is that the Parties' logos demonstrate the Respondent's prior knowledge of and intent to target the Complainant's mark. The similarities are immediately evident at first glance. In these circumstances, the Panel would have expected the Respondent to seek to address this in its Response and in particular to attempt to show that it arrived at its logo independently. The Respondent might have explained how it came to design its logo in the manner represented and whether the design was drawn up by it or a third party on its behalf. In the latter case, it might have discussed the range of design options with which it was presented or might have produced evidence from the third party as to its design process. It might have discussed whether any of the elements of similarity could be considered common to typical outdoor and active brands or whether they are otherwise explicable. It might have set out the possible limitations on representing the word "keen" in a logo or indeed any design constraints in general. On all of these matters the Response is markedly silent. For the Panel, the Respondent's failure to address the Complainant's case on this point is also damaging to the credibility of the Respondent's case.
Finally, the Panel notes that the evidence which the Respondent produces of the extent to which its brand has been in active use is for the most part of uncertain provenance and poor quality. Despite the fact that the dates of the various activities alleged to have been carried out under the Parties' respective brands are key to this dispute, the materials produced by the Respondent consist largely of a range of photographs either bearing a recent date or which are undated. Those items on which the Panel has been able to identify dates are one of the Respondent's two magazine advertisements, which appears from the picture to be contained in a March 2015 edition, and the photograph of a sponsor's board bearing the Respondent's logo, which bears the year 2013. The remainder of the evidence consists principally of photographs of groups of people engaging in outdoor activities, each holding a banner or bearing advertising featuring the Respondent's logo. In isolation, the photographs appear to the Panel to have a rather staged quality and, while this may be simply an unfortunate coincidence, the Respondent must have known that better and more convincing evidence ought to have been available and should have been brought forward. In a similar vein, the Respondent produces a photograph of a pair of billboards which appear to be on the outside of a shopping mall showing an advertisement for the Respondent's business; the mall is not identified nor is the Panel informed as to the dates of display, which could presumably have been vouched by way of an invoice from the media buyer. In conclusion, nothing of substance has been produced by the Respondent to support its averments that it has spent considerable cost on promoting its "Keen" brand and thus that it is well-known to the Indonesian public.
Despite the above analysis, there remains a slim possibility that the Respondent selected its brand in isolation of the Complainant and thus is making a bona fide offering of goods. The logo similarity may simply be a coincidence. The appearance of a staged quality in many of the Respondent's photographs may likewise be an unfortunate coincidence and the similarities unintended. The Respondent's failure to bring forward evidence to support the existence of its allegedly pre-dating business may be an accidental oversight. For the Panel, however, there are too many problems with the Respondent's factual account to accept it as more probable than that of the Complainant. The weight of evidence, particularly the correspondence of the logos and the lack of any apparent or offered explanation therefor, points in the direction of the Respondent having deliberately created a facsimile of the brand of an already successful competitor and having registered the disputed domain name to match. In all of those circumstances, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name. Accordingly, the requirements of paragraph 4(a)(ii) of the Policy have been satisfied.
F. Registered and Used in Bad Faith
It follows from the discussion in the previous section that the weight of evidence points in the direction of the Respondent having registered and used the disputed domain name in bad faith. While the Respondent denies that it knew of or was targeting the Complainant, such denial simply does not ring true for the Panel given the material on the present record. In the Panel's opinion, the number of similarities in the Parties' logos are too great for this to have resulted from mere coincidence. Furthermore, while there should have been copious evidence available to the Respondent demonstrating its alleged good faith and its prior use of the KEEN mark between 2002 and 2005, it has provided undated, inadequate and unconvincing materials.
The Panel does not consider that the Respondent's submissions regarding the existence of other businesses named or using the brand name "Keen" assist its case. The Panel in the present matter is reviewing the circumstances of the Respondent's registration and use of the disputed domain name, not the actions or domain names of third parties. In any event, the fact that there may be legitimate users of a certain name or brand in a domain name does not excuse the conduct of a party who has been found to have registered and used a similar domain name in bad faith within the meaning of the Policy.
In these circumstances, the Panel finds that the requirements of paragraph 4(a)(iii) of the Policy have been satisfied.
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 <keen-indonesia.com> be transferred to the Complainant.
Andrew D. S. Lothian
Date: December 7, 2015