The Complainant is QSoft Consulting Limited of Twickenham, Middlesex, United Kingdom of Great Britain and Northern Ireland, represented by Alexander Ramage Associates LLP, United Kingdom..
The Respondent is FCI Inc. of Seattle, Washington, United States of America, represented by Lewis & Lin, LLC, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with Tucows Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 5, 2012. On March 5, 2012, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the disputed domain name. On March 5, 2012, Tucows Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 8, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was March 28, 2012. On March 28, 2012 the Respondent’s legal representative contacted the Center to request that the Center grant a 10 day extension for filing a response as the Complainant and Respondent had been in correspondence regarding the settlement of the Complaint and the Respondent was waiting to hear from the Complainant’s legal representative. On March 29, 2012, Center notified the parties of the request that it had received from Respondent and outlined the process for making a request for suspension. The Complainant replied the same day saying that it did not wish to request an extension. On April 3, 2012, the Center notified the Respondent that it could not find sufficient grounds for extending the period for response under Paragraph 5(d) of the Policy, but that the Panel could, at its sole discretion, accept a late Response. On April 10, 2012, the Respondent wrote to the Center with material purporting to constitute a Response to the Complaint. On April 19, 2012, the Complainant wrote to the Center outlining reasons why the late Response ought not to be accepted.
The Center appointed Michael J. Spence as the sole panelist in this matter on April 18, 2012. 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 operates a suite of dating and social web sites under the trade mark GAYDAR, which is drawn from the words ‘gay’ and ‘radar’ and is a term commonly used in the lesbian, homosexual and bisexual communities to refer to the purported ability of members of those communities to identify the sexual orientation of others. The Respondent operates various adult web camera based entertainment services including a chat room and social networking service under the disputed domain name. 5. Parties’ Contentions A. Complainant
The Complainant contends, that the disputed domain name contains its registered trade mark with the addition only of descriptive term ‘cam’ to identify the type of site that the Respondent operates, and that it is therefore identical, or confusingly similar, to the Complainant’s trade mark, that the Respondent has no rights or legitimate interests in the disputed domain name, but it using it to exploit the reputation of the Complainant’s trade mark; and that the fact that the web site operating under the disputed domain name contains a logo and slogan apparently derivative of those of the Complainant is indicative of an intention to profit from confusion as to an association between the Complainant and the Respondent and therefore of bad faith. B. Respondent
Due to the lack of exceptional circumstances the Panel affirms the decision of the Center not to extend the period for response and the Panel does not consider the material submitted by the Respondent on April 19, 2012. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name clearly contains the Complainant’s trade mark in its entirety. While the trade mark consists of a term of common parlance in the lesbian, homosexual and bisexual community, its registration should be accepted as valid and sufficient to establish rights for the purposes of the Policy. The addition of the descriptive term ‘cam’ does not distinguish the disputed domain name from the trade mark, to which it is identical or confusingly similar.
For this reason the Panel therefore finds that the Complainant has established the first element of Paragraph 4(a) of the UDRP Policy. B. Rights or Legitimate Interests
It is for the Complainant to establish, at least prima facie that the Respondent has no rights or legitimate interests in the disputed domain name (Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110). In this case the only use that seems to have been made of the disputed domain names is for a web site that, through the similarity of the logo and slogan that it contains, suggest an association with the Complainant, when no such association exists. This use cannot give rise to rights or legitimate interests in the disputed domain name (DivX, LLC v. PrivacyP / Gerente de Dominia, CSRUS Enterprises, WIPO Case No. D2011-0600).
The Panel finds that the Complainant has made out a prima facie case, which has not been rebutted, and finds no other evidence which would allow this Panel to determine that the Respondent has any rights to or legitimate interests in the disputed domain name.
The Panel therefore finds that the Complainant has established the second element of paragraph 4(a) of the Policy in relation to the disputed domain name. C. Registered and Used in Bad Faith
The use on the Respondent’s web site of a logo and slogan which the Panel finds to be similar to those used by the Complainant and are only likely to exacerbate the confusion created by the disputed domain name, is evidence of an intention to profit from the likelihood of confusion between the Complainant’s trade mark and the disputed domain name. An intention to profit from likely confusion is perhaps the most widely recognized indicia of bad faith in the registration or continued use of a disputed domain name, as reflected in paragraph 4(b)(iv) of the Policy..
The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the Policy in relation to the disputed domain name. 7. Decision
For all 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 be transferred to the Complainant.
Michael J. Spence
Sole Panelist
Dated: May 2, 2012
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