The Complainant is Maven, France, represented by Deshoulières Avocats Associés, France.
The Respondent is Main Rhmdl, Aidh Prdazan ikta Sma Shrgh, Islamic Republic of Iran.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 16, 2021. On July 19, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 20, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 23, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 28, 2021.
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 July 29, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 18, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 1, 2021.
The Center appointed Assen Alexiev as the sole panelist in this matter on September 15, 2021. 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 BackgroundThe Complaint is a French company offering training courses in music production through videos, webinars, and seminars. The services are provided through the “Mix with the Masters” program, which is offered on the Complainant’s website at the domain name
The Complainant is the owner of the following trademark registrations for the sign “MIX WITH THE MASTERS” (the “MIX WITH THE MASTERS trademark”):
− the French trademark MIX WITH THE MASTERS with registration No. 4084775, registered on April 16, 2014 for services in International Classes 38 and 41;
− the European Union trademark MIX WITH THE MASTERS with registration No. 012966586, registered on February 12, 2015 for services in International Classes 38 and 41; and
− the United States of America trademark MIX WITH THE MASTERS with registration No. 4989173, registered on June 28, 2016 for services in International Classes 38 and 41.
The disputed domain name was registered on November 23, 2017. It resolves to a Persian-language website offering services similar to those of the Complainant.
5. Parties’ Contentions A. ComplainantThe Complainant submits that it is well known in the domain of music production, as its “Mix with the Masters” project exists since 2010 and the first trademark was registered in 2014. For the past eleven years, the Complainant has offered its program online through the website at the domain name
The Complainant states that the disputed domain name is confusingly similar to their MIX WITH THE MASTERS trademark, because the distinctive parts of the trademark and of the disputed domain name are the same and the only difference is the “.net” generic Top-Level Domain (“gTLD”) in the disputed domain name. According to the Complainant, there is a strong risk of confusion and consumers may believe that the MIX WITH THE MASTERS trademark and the disputed domain name are owned by the same company.
According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain name, because the Respondent competes with the Complainant by offering services that are identical or substantially similar to those the Complainant through the disputed domain name that reproduces the Complainant’s MIX WITH THE MASTERS trademarks and resolves to a website that features the Complainant’s logo. The Complainant points out in this regard that the Respondent’s use of the disputed domain name and of the associated website have not been authorized by the Complainant, and infringe its MIX WITH THE MASTERS trademark.
The Complainant contends that the disputed domain name was registered and is being used in bad faith. It notes that the disputed domain name was registered in 2017, while the MIX WITH THE MASTERS trademark was first registered in 2014. According to the Complainant, the Respondent should have known the MIX WITH THE MASTERS trademark and has chosen the disputed domain name to take advantage of this trademark and of the Complainant’s reputation by confusing Internet users that the Respondent is linked to the Complainant. The Respondent chose to offer services and to exploit a website in the highly specific area of music mixing training courses, which is an area about which the Respondent could not have ignored the existence of the Complainant. The Complainant points out that the thumbnails of the videos displayed on the Respondent’s website and some of the producers, songwriters, musicians or mixing engineers featured in them are exactly the same as those of the Complainant’s tutorials. According to the Complainant, the Respondent must have taken the videos from the Complainant’s website and edited them by replacing the Complainant’s logo with its own and adding Persian subtitles, thus infringing the Complainant’s rights in this content.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsPursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
By the Rules, paragraph 5(c)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name […]”.
The Respondent has however not submitted a Response and has not disputed the Complainant’s contentions and evidence in this proceeding.
A. Identical or Confusingly SimilarThe Complainant has submitted evidence that it is the registrant of the MIX WITH THE MASTERS trademark and has thus established its rights in this trademark for the purposes of the Policy.
The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the Top-Level Domain (“TLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). See section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Panel sees no reason not to follow the same approach here, so it will disregard the “.net” TLD section of the disputed domain name.
The disputed domain name incorporates all elements of the MIX WITH THE MASTERS trademark in their entirety, which makes it identical to this trademark.
Therefore, the Panel finds that the disputed domain name is identical to the MIX WITH THE MASTERS trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsWhile the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often-impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. See section 2.1 of the WIPO Overview 3.0.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, as it competes with the Complainant by offering services that are identical or substantially similar to those of the Complainant through the disputed domain name and the associated website that features the Complainant’s logo, and the Respondent’s activities have not been authorized by the Complainant. Thus, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent has not submitted a Response and has not alleged that it has rights or legitimate interests in the disputed domain name and has not disputed the Complainant’s allegations in this proceeding. The Respondent has not provided a plausible explanation why it has chosen this combination of words to register as a domain name. As discussed above, the disputed domain name is identical to the MIX WITH THE MASTERS trademark, and the evidence in the case shows that it resolves to a website that offers services that compete with those of the Complainant and features a logo that is very similar to the Complainant’s logo, without including any form of a disclaimer.
In view of the above, and in the lack of any contrary evidence, the Panel accepts that it is more likely than not that the Respondent, being aware of the goodwill of the Complainant and of the MIX WITH THE MASTERS trademark, has registered and used the disputed domain name in an attempt to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s MIX WITH THE MASTERS trademark as to the affiliation or endorsement of the Respondent’s website and of the services offered there. To the Panel, such conduct does not appear to be giving rise to rights or legitimate interests of the Respondent in the disputed domain name.
Therefore, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
As discussed above, the disputed domain name is identical to the MIX WITH THE MASTERS trademark, which creates the risk that Internet users may be led to wrongly believe that the disputed domain name is related to or endorsed by the Complainant. The risk of confusion is increased by the content of the Respondent’s website, which offers services that compete with those of the Complainant and includes no disclaimer for the lack of relationship between the Parties. The Respondent has not submitted a Response and has not disputed the Complainants’ allegations in this proceeding or provided any plausible explanation why it has chosen such combination of words to register as a domain name.
In view of the above, and in the lack of any contrary evidence, the Panel accepts that it is more likely than not that the Respondent, being aware of the goodwill of the Complainant and of the MIX WITH THE MASTERS trademark, has registered and used the disputed domain name in an attempt to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s MIX WITH THE MASTERS trademark as to the affiliation or endorsement of the Respondent’s website and of the services offered on it. This supports a finding of bad faith conduct under Paragraph 4(b)(iv) of the Policy.
Therefore, the Panel finds that the disputed domain name has been registered and used in bad faith.
7. DecisionFor 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
Assen Alexiev
Sole Panelist
Date: September 23, 2021