The Complainant is Tumblr, Inc. (“Tumblr”) of New York, New York, United States of America (“US”), represented internally.
The Respondent is an unknown person calling himself, herself, or itself “Thomas Kimber” of Downey, California, US. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom Inc. (“eNom”). 3. Procedural History
Tumblr filed a Complaint with the WIPO Arbitration and Mediation Center (the “Center”) on March 23, 2012. At that time, the disputed domain name apparently was registered to eNom under the name “WhoisGuard Protected.” On or about March 26, 2012, the Center requested that eNom provide the registration details for the disputed domain name . On or about March 29, 2012, eNom re-registered the disputed domain name to “Thomas Kimber” with a street address in Downey, California, US. Tumblr then filed an amended Complaint naming “Thomas Kimber” as the Respondent.
Upon receipt of Tumblr’s Amended Complaint, the Center verified that 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(a) and 4(a), on April 3, 2012, the Center formally notified the Respondent of the Complaint and of the commencement of these proceedings. The Center transmitted the Complaint, the Amended Complaint and supporting documents to the Respondent by e-mail addressed to the e-mail address given in the registration record and a written notice in hardcopy by DHL shipment to the street address given in the registration record. DHL reported that “Thomas Kimber” was not present at the street address given and that the telephone number listed in the registration was also false.
The due date for Response was April 23, 2012. The Respondent did not submit any response. On May 1, 2012, the Center gave notice of the Respondent’s default by e-mail addressed to the e-mail address given in the registration record. On May 4, 2012, the Center appointed James W. Dabney to act as the sole panelist in this matter. 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 owns and operates a microblogging and social information sharing platform under the service mark TUMBLR. The Complainant has used TUMBLR in association with its services since 2007. The Complainant’s primary site is associated with the domain name . The Complainant owns US Registration No. 3,714,214 for TUMBLR as applied to (i) “electronic publishing services, namely, publishing of online works of others featuring electronic media, multimedia contents, videos, movies, pictures, images, text, photos, user-generated content, and related information via the Internet and other communications networks; electronic publishing of blogs of others”, and (ii) “Internet based social networking services allowing users to communicate and share, store, transmit, view, and download text, images, audio and video content, and other multimedia materials”, with first use claimed since February 19, 2007. The Complainant has submitted evidence which tends to show that as of February 17, 2012, its TUMBLR services enjoyed a substantial degree of public recognition.
According to the WhoIs records, the disputed domain name was registered in February 17, 2012. As noted above, the Registrar disclosed the name of “Thomas Kimber” on or about March 29, 2012. Approximately five weeks previously, the disputed domain name had been registered to eNom, under the name “WhoisGuard Protected”. “WhoisGuard Protected” appears to be an alias for eNom when its sells “privacy” domain name registration service. 5. Parties’ Contentions A. Complainants
The Complainant contends that the disputed domain name is confusingly similar to the mark TUMBLR, in which the Complainant has prior rights. The disputed domain name comprises the registered service mark TUMBLR conjoined with a generic word, links. The conjunction of “tumblr” and “links” does not create any commercial impression that is distinct from the words taken individually. Rather, the disputed domain name is best understood as connoting TUMBLR links, which is to say, a misrepresentation.
The Complainant further contends that “Thomas Kimber” has no rights or legitimate interests in the disputed domain name . As applied to the services recited in the Complainant’s US Registration No. 3,714,214, TUMBLR is an arbitrary and inherently strong mark. The Complainant has further submitted evidence that TUMBLR had commercial strength long prior to March 29 and February 17, 2012, when was registered to eNom or its customer, “Thomas Kimber.” The Complainant swears that the Respondent is not affiliated with Tumblr in any way and has no license to use Tumblr’s registered service mark.
Finally, the Complainant contends that was registered and is being used in bad faith. Besides having provided false registrant contact details, at the time Tumblr’s Complaint in this proceeding was filed, the disputed domain name resolved to web pages that told visitors that they could get a free iPhone 4S if they entered personal information. Evidence submitted by Tumblr tends to show that the disputed domain name was being used to support a fraudulent “phishing” scheme, with the domain name falsely suggesting that Tumblr sponsors the hypertext “links” presented on web pages associated with the disputed domain name. B. Respondent
As noted above the Respondent did not submit any response to Tumblr’s Complaint. In the circumstances presented, the Panel finds it is more likely than not that the person for whom eNom registered the disputed domain name , and who used the name and/or alias “Thomas Kimber”, likely received e-mailed notice of this proceeding and made a deliberate decision to default. 6. Discussion and Findings
Under Paragraph 4(a) of the Policy, the Complainant bears the burden of proving each of the following by a preponderance of the evidence:
(i) the domain name registered by the Respondent is identical or confusingly similar to a trademark or a service in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the Domain Name was registered and is being used in bad faith. A. Identical or Confusingly Similar
The record establishes, to the Panel’s satisfaction, that Tumblr has rights in the service mark TUMBLR. US Registration No. 3,714,214 constitutes prima facie evidence of Tumblr’s rights in this regard. Additionally, uncontradicted evidence shows that TUMBLR is a coined, arbitrary term as applied to the services recited in the 3,714,214 registration. Tumblr has additionally submitted substantial evidence that TUMBLR enjoys a substantial degree of public recognition.
The services offered by Tumblr comprise use of visually displayed, executable commands that are commonly referred to as “hypertext links” or “hyperlinks.” In the Panel’s view, the disputed domain name is thus highly misdescriptive if not literally false in its commercial connotation. The record establishes, to the Panel’s satisfaction, that is confusingly similar to the registered service mark TUMBLR. B. Rights or Legitimate Interests
The Respondent has defaulted in this proceeding and has presented no evidence that he, she, or it has any rights or legitimate interests in the disputed domain name . The record affirmatively shows, to the contrary, that the disputed domain name was being used in a highly deceptive fashion at the time the Complaint was filed. The Respondent’s default is consistent with what the record otherwise shows, namely, that TUMBLR is an arbitrary name and the Respondent has no legitimate interests in registering or using TUMBLR to identify hypertext links or hyperlinks on a site having no connection to Tumblr.
The record establishes, to the Panel’s satisfaction, that the Respondent has no rights or legitimate interests in respect of the disputed domain name . C. Registered and Used in Bad Faith
The record convincingly shows that the registrant of the disputed domain name has engaged in classic bad faith behavior, which is to say, it has “intentionally attempted to attract, for commercial gain, Internet users to the holder's 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 the holder's website or location or of a product or service on the holder's website or location.” Policy paragraph 4b(iv).
The deceptive character of the Respondent’s use is consistent with the Respondent’s default.
The record establishes, to the Panel’s satisfaction, that the disputed domain name was registered and is being used in bad faith within the meaning of the Policy. 7. Decision
For 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.
James W. Dabney
Sole Panelist
Dated: May 9, 2012
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