Madrivo Media, LLC v. Madrivos Media
Claim Number: FA2101001928911
Complainant is Madrivo Media, LLC (“Complainant”), represented by Sarah R. Frankfort of Diego Law LLC, Texas, USA. Respondent is Madrivos Media (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <madrivos.com> (‘the Domain Name’), registered with GoDaddy.com, 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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 19, 2021; the Forum received payment on January 19, 2021.
On January 20, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <madrivos.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 21, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 10, 2021 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@madrivos.com. Also on January 21, 2021, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On February 15, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN 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
The Complainant is the owner of the mark MADRIVO, registered, inter alia, in the USA for advertising services with first use recorded as 2012. It owns <madrivo.com>.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s mark adding only the letter ‘s’ and the gTLD “.com” which do not prevent said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name and is not authorized by the Complainant.
The Domain Name has been used for a site offering competing services. Respondent’s website boasts that it has “spent years developing trusted relationships with our network partners....We stand behind our high-converting network of over 1,200 affiliates.” This statement is highly improbable considering that the Domain Name and related website have been in operation for less than a week’s time. Respondent appears to be passing itself off as Complainant as an advertising network, and utilizing the goodwill that Complainant has worked to acquire over many years. Respondent is using a slightly different spelling to divert and confuse customers. This is not a bona fide offering of services or a legitimate noncommercial or fair use. The Domain Name has been registered and used in opportunistic bad faith to take advantage of the Complainant’s trade mark to confuse Internet users for commercial gain and to disrupt the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark MADRIVO, registered, inter alia, in the USA for advertising services with first use recorded as 2012. It owns <madrivo.com>.
The Domain Name registered in 2021 has been used to offer competing services.
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 and is being used in bad faith.
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 Domain Name in this Complaint combines the Complainant’s MADRIVO mark (registered, inter alia, in the USA for advertising services with first use recorded as 2012) with the letter ‘s’ and the gTLD “.com”.
The letter ‘s’ and the gTLD “.com” do not prevent confusing similarity between the Domain Name and the Complainant’s mark per Policy ¶ 4(a)(i). See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”). See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
The Respondent has not answered this Complaint and is not authorized by the Complainant. The use of the Domain Name is commercial and so cannot be legitimate noncommercial fair use.
It is clear from the evidence that the Respondent has used the site attached to the Domain Name to promote competing advertising services which are not connected with the Complainant.
The usage of a sign confusingly similar to the Complainant’s MADRIVO mark which has a significant reputation in relation to advertising services is deceptive as the web site does not make it clear that there is no commercial connection with the Complainant and the Respondent refers to itself as a longstanding business when the Domain Name was only registered a short time ago in an apparent attempt to associate itself with the Complainant as a longstanding business in the same field. As such this cannot amount to the bona fide offering of goods and services. See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Domain Name also appears to be a typosquatting registration. Typosquatting can provide additional evidence that a respondent has no rights or legitimate interests in a disputed domain name. See Macy’s Inc. and its subsidiary Macy’s West Stores, Inc. v. chen wenjie c/o Dynadot Privacy, FA1404001552918 (Forum May 21, 2014) (“Respondent’s disputed domain names are typosquatted versions of Complainant’s registered mark. Typosquatting shows a lack of rights or legitimate interests.”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
The Respondent's use of the Domain Name is commercial and the Respondent is using the Domain Name for competing services not associated with the Complainant in a confusing manner.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users by creating likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation or the Respondent’s web site or services offered on it. This also appears designed to disrupt the business of a competitor. See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA 1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy 4 (b)(iii).) See also CAN Financial Corporation v. William Thomson/CAN Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that Respondent had engaged in bad faith under Policy 4(b)(iv) by using a confusingly similar domain name to attract internet users where it offered competing services).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith under paragraphs 4(b)(iii) and (iv) and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <madrivos.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 15, 2021
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