A Mediocre Corporation files a mediocre cybersquatting case.
I’m often perplexed at how some UDRP Complainant lawyers argue a case. I had these thoughts again while reading a decision over the domain MorningSafe.com.
A Mediocre Corporation, which operates the discount site MorningSave.com, filed a UDRP against the domain name MorningSafe.com.
My first reaction when seeing the domain is that MorningSafe.com seems entirely different from MorningSave.com. MorningSafe sounds like a morning after pill. MorningSave sounds like a discount/coupon site.
But when you look at your keyboard, you’ll see why the Complainant is concerned about this domain. The letter F is just offset from V.
Therefore, with proper arguments, it could have argued that this is a case of typosquatting. But the Complaint falls well short of that.
UDRP panelist Debrett Lyons found that that the Complainant didn’t show the domain is identical or confusingly similar to the trademark:
The comparison resolves to that of MORNINGSAVE with “morningsafe” and in that regard Complainant’s legal representatives make the extraordinary submission that the expressions are “phonetically identical … because phonetically the terms … are indistinguishable.” The Panel notes that the expressions are only indistinguishable to someone with no facility in English spoken language. If what Complainant’s representatives meant to say was that the expressions are phonetically similar, that is another matter.
Even though the case failed on the first element, Lyons also found that the Complainant didn’t show that the domain was registered and used in bad faith. The Respondent registered the domain prior to A Mediocre Company filing a trademark application for its brand. However, it claims use prior to the registration of MorningSafe.com.
The Complainant cited an exhibit of a website screenshot to show the early use. But, according to Lyons, the exhibit “in fact shows various screenshots of Complainant’s website on April 24, 2019 and nothing else.”
There are plenty of Wayback Machine screenshots showing early use of the MorningSave. These could have been included with date stamps to show the use.
The domain owner didn’t respond to the UDRP filing.
I’m mindful that a panelist’s write up of a case might not include all of the assertions, but there were some missed opportunities here. Maybe not enough to swing the decision, but enough to put forth a plausible argument.