WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mothercare UK Limited v. Lonetta Janke, Lite LLC
Case No. D2017-2433
1. The Parties
The Complainant is Mothercare UK Limited of Watford, Hertfordshire, United Kingdom of Great Britain and Northern Ireland ("United Kingdom" or "UK"), represented by Stobbs IP Limited, United Kingdom.
The Respondent is Lonetta Janke, Lite LLC, Lake City, United States of America ("United States").
2. The Domain Name and Registrar
The disputed domain name <motherncare.com> (the "Domain Name") is registered with Tucows Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 8, 2017. On December 8, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 8, 2017, 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. In response to a request for amendment by the Center, the Complainant filed an amended Complaint on December 19, 2017.
The Center verified that the Complaint together with the amended 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 December 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 9, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 10, 2018.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on January 18, 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 was established in the United Kingdom in 1961. It offers a range of maternity and children's clothing, furniture and home furnishings, bedding, feeding, bathing, travel equipment and toys through its retail operations in the United Kingdom. It also operates internationally through franchises in Europe, the Middle East, Asia and Latin America. There are over 170 Mothercare stores in the UK and a further 1,310 stores internationally through Mothercare's franchisees. As of March 2017, worldwide sales totaled over GBP 1,000 million.
The Complainant owns rights in the MOTHERCARE trademark through numerous trademark registrations and applications worldwide, including United States Trademark Registration No. 1806981, registered on November 30, 1993. The trademark registrations cover a range of goods and services. The core services are retail services and online retail services, and products related to babies, children and parents.
The Complainant registered the domain name <mothercare.com> on December 5, 1997 and has used it since as the Complainant's primary website.
At the time of drafting this decision, the Domain Name does not resolve to an active website.
5. Parties' Contentions
The Complainant provides trademark registrations, and submits that its trademark is well known in the market. The Complainant observes that the Domain Name contains the element "mothercare", along with an additional "n" in the middle. The Complainant argues that the additional letter does not sufficiently alter the overall impression, and would be easily overlooked by the average consumer as a common typo. Hence, the Domain Name is confusingly similar to the trademark MOTHERCARE.
The Complainant argues that the Respondent is not affiliated or related to the Complainant in any way, or licensed or otherwise authorized to use the Complainant's trademarks. Bearing in mind the significant worldwide reputation of the MOTHERCARE brand, the Complainant finds no reason for registration or use of the Domain Name, other than to take advantage of the Complainant's rights. The Respondent is not making a fair or legitimate noncommercial use of the Domain Name. On the contrary, the Complainant provides evidence that the Domain Name has been used to facilitate phishing attacks to the Complainant's employees. The Complainant concludes that the Respondent is exploiting the Domain Name in a fraudulent way.
As to bad faith, the Complainant argues that there is no reason for registration of the Domain Name other than to take advantage of the Complainant's rights. As described, the Respondent is using the Domain Name to facilitate phishing attacks to the Complainant's employees. According to the Complainant, it is evident that the registration is made and used in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established that it has rights in the trademark MOTHERCARE. The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name is confusingly similar to the Complainant's trademark. The addition of the letter "n" in the middle does not avoid a finding of confusing similarity. For the purpose of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top‑Level Domain ".com".
The Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register a domain name containing its trademark or otherwise make use of its mark. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way. As documented by the Complainant, the Respondent uses/has used the Domain Name to facilitate phishing attacks to the Complainant's employees. Therefore, the Respondent is not making a bona fide offering nor a legitimate noncommercial or fair use within the meaning of the Policy.
The Panel finds that the Complainant has made out an unrebutted prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
It is likely that the Respondent has been aware of the Complainant's trademarks and its business when the Respondent registered the Domain Name.
The Complainant has evidenced that the Domain Name has been used to facilitate phishing attacks to the Complainant's employees. The Panel therefore finds that the Respondent registered and is using the Domain Name with the intention of confusing Internet users into believing that the Domain Name is associated with the Complainant. The use of the Domain Name for phishing attacks constitutes bad faith pursuant to the Policy. The bad faith is supported by the fact that the Respondent has not responded to the Complainant's contentions.
For the reasons set out above, the Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <motherncare.com> be transferred to the Complainant.
Date: January 19, 2018