Khadi & Village Industries Commission v. Ashish / DrilllMaps LLC
Claim Number: FA2303002037593
Complainant is Khadi & Village Industries Commission (“Complainant”), represented by Shwetasree Majumder of Fidus Law Chambers, India. Respondent is Ashish / DrilllMaps LLC (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <khadiindia.us>, registered with Google LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on March 28, 2023; Forum received payment on March 28, 2023.
On March 29, 2023, Google LLC confirmed by e-mail to Forum that the <khadiindia.us> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On March 29, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 2023 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@khadiindia.us. Also on March 29, 2023, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On April 21, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <khadiindia.us> domain name is confusingly similar to Complainant’s KHADI mark.
2. Respondent does not have any rights or legitimate interests in the <khadiindia.us> domain name.
3. Respondent registered and uses the <khadiindia.us> domain name in bad faith.
B. Respondent did not file a Response.
Complainant is an organization in India that provides rural employment programs by producing saleable goods. Complainant holds registrations for the KHADI mark, including with the Indian government (Reg. No. 1,272,626, registered on February 12, 2014).
Respondent registered the <khadiindia.us> domain name on May 21, 2021, and uses it to pass off as Complainant and sell unauthorized goods in competition with Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that Complainant has rights in the KHADI mark based on multiple registrations, including with the Indian government. See Teleflex Incorporated v. Leisa Idalski, FA 1794131 (Forum July 31, 2018) (“Registration of a mark with governmental trademark agencies is sufficient to establish rights in that mark for the purposes of Policy ¶ 4(a)(i).”)
Respondent’s <khadiindia.us> domain name uses the KHADI mark and simply adds “india” and the “.us” ccTLD. The addition of a generic or descriptive term and a ccTLD fails to sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”) Therefore, the Panel finds that Respondent’s <khadiindia.us> domain name is confusingly similar to Complainant’s KHADI mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent lacks rights and legitimate interests in the <khadiindia.us> domain name as Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed to Respondent any rights in the KHADI mark. The WHOIS information for the disputed domain name lists the registrant as “Ashish / DrilllMaps LLC”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(iii). See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.)
Complainant argues that Respondent fails to use the <khadiindia.us> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use as Respondent uses it to offer counterfeit versions of Complainant’s products. Using a disputed domain name to pass off as a complainant for the purpose of selling unauthorized versions of a complainant’s products is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) or (iv). See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”) Complainant provides a screenshot of the content at <khadiindia.us> showing Complainant’s KHADI mark and a reference to themselves as “Khadi India (USA)” and a claim to source food products from different parts of India, as complainant does. Complainant argues that the user interface of Respondent’s website at the disputed domain name is nearly identical to Complainant’s and Respondent has copied images from Complainant’s website and social media pages. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(ii) or (iv).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered or uses the <khadiindia.us> domain name in bad faith by using it to pass off as Respondent and sell counterfeit versions of Complainant’s products for Respondent’s financial gain. Using a disputed domain name to disrupt business by passing off as a complainant and selling unauthorized products constitutes bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”) Accordingly, the Panel finds Respondent bad faith under Policy ¶ 4(b)(iv).
Complainant also contends that Respondent registered the <khadiindia.us> domain name with actual knowledge of Complainant’s rights in the KHADI mark, since Respondent uses Complainant’s mark and images from Complainant’s website. The Panel agrees and finds that this is further evidence of bad faith, under Policy ¶ 4(a)(iii). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <khadiindia.us> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 24, 2023
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