Westmore · UDRP DecisionMomycare.com
The Panel ordered transfer of <momycare.com>. It found the domain confusingly similar to the Complainant’s MOTHERCARE mark because “momy,” an obvious misspelling of “mommy,” conveyed the same meaning as “mother” and was aurally identical to a common colloquialism for that term. The Respondent lacked rights or legitimate interests because the domain was used for a competing online store that displayed the Complainant’s logos and misleadingly suggested an association. Bad faith was established from the Respondent’s knowledge of the mark, commercially motivated confusion, and its association with a previous adverse UDRP decision and similar websites at other domains.
The timeline behind momycare.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
This decision illustrates that confusing similarity may be established through conceptual and aural equivalence even where the trademark is not reproduced literally. It also demonstrates how website content can reinforce that assessment and become decisive under the rights-or-legitimate-interests and bad-faith elements when the site imitates the complainant’s branding and competes in the same product area.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Mothercare UK Limited v. R. F. Showghi Case No. D2018-1230 1. The Parties The Complainant is Mothercare UK Limited of Watford, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Stobbs IP Limited, United Kingdom. The Respondent is R. F. Showghi of Tehran, Islamic Republic of Iran (“Iran”). 2. The Domain Name and Registrar The disputed domain name <momycare.com> (the “Disputed Domain Name”) is registered with CSL Computer Service Langenbach GmbH dba Joker.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 1, 2018. On June 1, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 7, 2018, 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 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 June 13, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 3, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 4, 2018. The Center appointed John Swinson as the sole panelist in this matter on July 13, 2018. 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 Mothercare UK Limited. According to the Complaint, the Complainant launched the Mothercare brand 1961. The Complainant offers maternity and children’s clothing, furniture, bedding, feeding, bathing and travel equipment, and toys through its retail stores in the United Kingdom, and also through its franchises in Europe, the Middle East, Asia, and Latin America. As of March 2017, the Complainant operated 152 stores in the United Kingdom, and its franchise partners operated through 1,150 stores. The Complainant has a large portfolio of trade marks for MOTHERCARE registered in various jurisdictions, the earliest of which was United Kingdom registered trade mark number no. 855429, registered on October 18, 1963 (the “Trade Mark”). The Complainant operates an online store at the domain name <mothercare.com>. The Respondent is R. F. Showghi, an individual of Iran. The Respondent did not file a Response, and consequently little information is known about the Respondent. The Respondent registered the Disputed Domain Name on August 24, 2015. The Complainant has provided evidence showing that, at the time the Complaint was filed, the website at the Disputed Domain Name was an online store appearing to offer products for sale which were similar to those offered by the Complainant. Two of the Complainant’s logos appeared on the home page of that website. At the time of this decision, the Disputed Domain Name redirects to an identical website at “www.mcareiran.ir”. This website does not contain the Complainant’s logos, but features the words “mammycare” in a font and style identical to that used by the Complainant in its registered MOTHERCARE logo. 5. Parties’ Contentions A. Complainant The Complainant makes the following contentions. Identical or Confusingly Similar The generic Top-Level Domain (“gTLD”) “.com” may be disregarded in the determination of confusing similarity under the conventions of the Policy. As such, the assessment is between “Mothercare” and “Momycare”. The word “momy” is clearly understood to mean “mummy” (or “mommy” in United States spelling). The words “mummy” and “mother” are conceptually identical. Given the Complainant’s extensive reputation throughout the world, Internet users are likely to assume a connection between the Complainant and the Disputed Domain Name on the basis of the clear similarities between “Mothercare” and “Momycare”. The Disputed Domain Name is confusingly similar to the Trade Mark. Rights or Legitimate Interests The website at the Disputed Domain Name has the same look and feel as the Complainant’s official website (at <mothercare.com>). The Respondent’s website reproduces many elements of the Complainant’s branding, including two of the MOTHERCARE logo marks. Further, the “About Us” section of the website at the Disputed Domain Name contains inaccurate information about the Complainant’s history. The Respondent is not using the Disputed Domain Name in relation to a bona fide offering of goods or services, and is not commonly known by the Disputed Domain Name. “Momycare” is not a legitimate business. The Respondent is using the Disputed Domain Name for unfair commercial gain, to misleadingly divert consumers and to tarnish the Trade Mark. Registered and Used in Bad Faith The Respondent’s activities in respect of the Disputed Domain Name amount to bad faith. The Disputed Domain Name resolves to a website which uses two of the Complainant’s logos. The website is clearly intended to have the look and feel of an official Mothercare website, when the website is not official and has not been authorized by the Complainant. The Disputed Domain Name is being used to confuse Internet users into believing the website at the Disputed Domain Name is associated with the Complainant and that the products being sold via that website are genuine MOTHERCARE products. The Respondent has registered the Disputed Domain Name for the purpose of intentionally attracting, for commercial gain, Internet users to the website at the Disputed Domain Name by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation, or endorsement of the website, which is evidence of bad faith registration and use under paragraph 4(b)(iv) of the Policy. The registrant email address associated with the Disputed Domain Name is identical to an email address previously associated with the domain name <mothercareiran.com>. The Complainant successfully obtained a transfer of this domain name in 2015 after filing a complaint under the Policy (see Mothercare UK Limited v. Roohallah Famil Shoughi, Ranik Moshaver/Mothercare Iran , WIPO Case No. D2015-1419 ). Further, a Reverse WhoIs search shows that the Respondent owns one other domain name, being <ninipro.com>. The website associated with this domain name is also a replica of the Complainant’s website and also features the Complainant’s logos. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely: (i) the Disputed 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 Disputed Domain Name; and (iii) the Disputed Domain Name has been registered and is being used in bad faith. The onus of proving these elements remains on the Complainant even though the Respondent has not filed a Response. A. Procedural Issues The Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant (see, e.g. , Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org , WIPO Case No. D2013-2059 ). However, the Panel may draw appropriate inferences from the Respondent’s default. B. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark. Generally, the test for identity or confusing similarity involves a side-by-side comparison of the domain name and the trade mark to assess whether the trade mark is recognizable within the domain name (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Third Edition (“WIPO Overview 3.0”), section 1.7 ). As submitted by the Complainant, the term “momy” in the Disputed Domain Name (obviously a misspelling of “mommy”) has the same meaning as the term “mother” in the Trade Mark, and is aurally identical to a common colloquialism of that term. As such, the Panel considers that the Disputed Domain Name is confusingly similar to the Trade Mark. In these circumstances, the content of the website at the Disputed Domain Name (discussed in detail in relation to elements two and three below) supports this finding (see WIPO Overview 3.0, sections 1.7 and 1.15 ). The Complainant succeeds on the first element of the Policy. C. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests. The Panel considers the Complainant has made out a prima facie case . This finding is based on the following: - The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. At the time the Complaint was filed, the website at the Disputed Domain Name was an online store offering for sale products which are similar to (and likely compete with) those offered by the Complainant. The Respondent’s website also featured two of the Complainant’s logos (which are also registered trade marks). At the time of this decision, the Respondent has redirected the Disputed Domain Name to an almost identical website at <mcareiran.ir>. Neither of these uses of the Disputed Domain Name is bona fide . - The Panel accepts the Complainant’s submission that the Complainant has not authorized or otherwise given the Respondent permission to use the Disputed Domain Name. - There is no evidence that the Respondent has been commonly known by the Disputed Domain Name, or has registered or common law trade mark rights in relation to this name. - The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. It is likely that the Respondent is using the Disputed Domain Name to mislead Internet users into believing the Respondent is associated with the Complainant, presumably for commercial gain. The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy. D. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The Complainant has been operating under the Trade Mark since 1961. The Complainant has demonstrated the importance of its intellectual property by registering the Trade Mark in numerous countries. Based on the evidence provided by the Complainant, the Panel finds that the Respondent had knowledge of the Trade Mark at the time it registered the Disputed Domain Name. This is clear from the fact that the Respondent is operating a store from the website at the Disputed Domain Name which sells similar products to those offered by the Complainant, and which features the Complainant’s logos in doing so. The Panel finds that the Respondent sought to take advantage of the reputation of the Complainant and the Trade Mark, and registered the Disputed Domain Name because of this reputation. The Panel considers that the Respondent registered and is using the Disputed Domain Name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation, or endorsement of the website at the Disputed Domain Name. This is evidence of bad faith registration and use (see paragraph 4(b)(iv) of the Policy). The Respondent’s bad faith is also evidenced by the following: - The Respondent is the subject of a previous adverse decision under the Policy in respect of the same Trade Mark (in relation to the domain name <mothercareiran.com>). The email address and registrant name associated with the Disputed Domain Name is the same as those associated with <mothercareiran.com>. - The Respondent owns or controls at least two other domain names featuring the same or a similar online store to that to which the Disputed Domain Name resolves, being <mcareiran.ir> and <ninipro.com>. In light of the above, and the Respondent’s failure to provide evidence to the contrary, the Panel finds that the Complainant has succeeded on the third element 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 Name <momycare.com> be transferred to the Complainant. John Swinson Sole Panelist Date: July 24, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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