Martin’s Super Markets, Inc. v. Varma, Srinivas
Claim Number: FA2303002034522
Complainant is Martin’s Super Markets, Inc. (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Varma, Srinivas (“Respondent”), IN, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <partiesbymartins.com>, registered with Network Solutions, 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 5, 2023; Forum received payment on March 5, 2023.
On March 7, 2023, Network Solutions, LLC confirmed by e-mail to Forum that the <partiesbymartins.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 March 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 29, 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@partiesbymartins.com. Also on March 9, 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 5, 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 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, 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 <partiesbymartins.com> domain name is confusingly similar to Complainant’s MARTIN’S mark.
2. Respondent does not have any rights or legitimate interests in the <partiesbymartins.com> domain name.
3. Respondent registered and uses the <partiesbymartins.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Martin’s Super Markets, Inc. holds registrations for the MARTIN’S mark with the Michigan Department of Consumer and Industry Services (Reg. No. M02-102, registered January 23, 1998) and also with the state of Indiana.
Respondent registered the <partiesbymartins.com> domain name on January 2, 2013, and uses it to pass off as 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 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”).
Complainant asserts rights in the MARTIN’s mark based on registration with the Michigan Department of Consumer and Industry Services. Registration with a state authority is sufficient to demonstrate rights in a mark per Policy 4(a)(i). See Ridgegate Investments, Inc. v. Cody McCarthy / Keller Williams Real Estate LLC, FA 1727947 (Forum May 26, 2017) (“The Panel also finds that the registration of a mark with a State authority is sufficient to establish rights in the mark.”) Therefore, the Panel finds that Complainant has rights in the MARTIN’s mark per for purposes of Policy ¶ 4(a)(i).
Respondent’s <partiesbymartins.com> domain name uses the MARTIN’S mark and simply adds the term “parties by” and the “.com” gTLD. The addition of generic terms and a gTLD does not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”) Therefore, the Panel finds that Respondent’s <partiesbymartins.com> domain name is confusingly similar to Complainant’s MARTIN’S 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 claims that Respondent has no rights or legitimate interests in the <partiesbymartins.com> domain name, as Respondent is not commonly known by the domain name. Complainant has not authorized Respondent to use the MARTIN’S mark. The WHOIS information of record lists “Varma, Srinivas” as the registrant of the disputed domain name. The Panel therefore finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same).
Complainant contends Respondent fails to use the <partiesbymartins.com> domain name for a bona fide offering of goods and services or a legitimate noncommercial or fair use. Using a disputed domain name to pass off as a Complainant is not a bona fide offering of goods and services or a legitimate or fair use under Policy ¶ 4(c)(i) or (iii). See ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii).”) Complainant provides screenshot evidence showing that the website at <partiesbymartins.com> mimics Complainant’s website. The Panel finds that this is not a bona fide offering of goods and services or a legitimate or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent registered and uses the <partiesbymartins.com> domain name in bad faith by diverting Martin’s customers to Respondent’s website and disrupting Complainant’s business. The Panel agrees and finds bad faith under Policy ¶ 4(b)(iii). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)).
Complainant asserts that Respondent registered the <partiesbymartins.com> domain name with actual knowledge of Complainant’s rights in the MARTIN’S mark based on Respondent’s copying of Complainant’s marketing materials and logo on the resolving website. The Panel agrees, noting that Complainant has been using the MARTIN’S mark since 1947, and finds further bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <partiesbymartins.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 6, 2023
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