The Complainant is Cougar Life Inc. of Toronto, Ontario, Canada, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
The Respondent is Dongyuan of Hangzhou, Zhejiang, China. 2. The Domain Names and Registrar
The disputed domain names , and are registered with 35 Technology Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 27, 2013. On June 28, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On July 1, 2013, 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. On July 1, 2013, the Center transmitted an email to the parties in both Chinese and English regarding the language of the proceeding. On July 1, 2013, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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 proceeding commenced on July 8, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was July 28, 2013. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on July 29, 2013.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on August 7, 2013. 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 A. Complainant
The Complainant is a company incorporated in Canada.
The Complainant is the owner of registrations in Canada, the United States of America, the European Union and Australia for the trade mark COUGAR LIFE (the “Trade Mark”), the earliest dating from July 2009. B. Respondent
The Respondent is an individual apparently with an address in China. C. The Disputed Domain Name
The disputed domain names were registered on April 23, 2013. 5. Parties’ Contentions A. Complainant
The Complainant made the following submissions in the Complaint.
The Complainant has since February 2009 specialised in the provision of a unique online dating service marketed and provided under the Trade Mark in several countries worldwide.
The disputed domain names are confusingly similar to the Trade Mark. The Complainant contends that this is a clear cut case of typosquatting where the Respondent has added or substituted a single letter in each of the disputed domain names to create a typo variant of the Trade Mark, and that these have been chosen on the likelihood of a predictable typing or spelling mistake being made by Internet users.
The Respondent has no rights or legitimate interests in respect of the disputed domain names. They are being used in respect of pay per click websites (the “Websites”) with sponsored links to third party websites offering online dating services similar to and arguably in competition with the services offered by the Complainant under the Trade Mark.
The Respondent is not commonly known by the disputed domain names and is not making a bona fide noncommercial use of the disputed domain names.
The disputed domain names have been registered and used in bad faith. The fact they are typo variants of the Trade Mark is of itself evidence of bad faith, as is the fact they are being used in respect of Websites providing sponsored links to third party dating sites. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
The language of the registration agreement for the disputed domain names is Chinese.
Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. No agreement has been entered into between the Complainant and the Respondent to the effect that the language of the proceeding should be English.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) Electrical Appliance Co. Ltd., WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593).
The Complainant has requested that English be the language of the proceeding for the following reasons:
(1) Conducting the proceeding in Chinese would place an undue burden on the Complainant. As a Canadian entity, the Complainant is not in a position to conduct the proceeding in Chinese without incurring additional substantial expense. The Complainant has no working knowledge of Chinese and requiring the Complaint and its annexures to be translated into Chinese would also cause delay;
(2) The Websites are English language which suggests the Respondent is proficient in the English language;
(3) It appears that other domain names registered by the Respondent are resolved to English language parking pages.
The Respondent did not file a Response and did not file any submissions with respect to the language of the proceeding.
In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the proposed language, time and costs (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004; Finter Bank Zurich v. Shumin Peng, WIPO Case No. D2006-0432).
The Panel finds that sufficient evidence has been adduced by the Complainant to suggest the likely possibility that the Respondent is conversant in the English language (Finter Bank Zurich v. Shumin Peng, supra). The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Decision
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through registration and use which predate the date of registration of the disputed domain names by over 4 years.
In the Panel’s view, this is a clear cut case of typosquatting.
The Panel therefore finds that the disputed domain names are confusingly similar to the Trade Mark and holds that the Complaint fulfills the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the disputed domain names:
(i) before any notice to the Respondent of the dispute, the Respondent’s use of, or demonstrable preparations to use, the disputed domain names or a name corresponding to the disputed domain names in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain names even if the Respondent has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain names or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent’s registration of the disputed domain names by over 4 years. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names, and the burden is thus on the Respondent to produce evidence to rebut this presumption (see Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; and Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, the evidence suggests the disputed domain names have been resolved to the Websites which generate revenue for the Respondent through sponsored third party dating sites, by attracting Internet users who have misspelled the Complainant’s domain name.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain names. The Panel therefore finds that the Complaint fulfills the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Pursuant to paragraph 4(b)(iv) of the Policy, the following conduct amounts to registration and use in bad faith on the part of the Respondent:
By using the disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s Websites 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 Respondent’s Websites or location or of a product or service on the Respondent’s Websites or location.
The evidence shows the Respondent has registered the disputed domain names and set up the Websites in order to generate revenue from Internet users who have misspelled the Complainant’s domain name, via sponsored links to third party dating sites. Such use of the disputed domain names amounts to clear evidence of bad faith.
The Panel therefore finds, in all the circumstances, the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain names have been registered and are being used in bad faith. Accordingly, the third condition of paragraph 4(a) of the Policy has been fulfilled. 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 names , and be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: August 21, 2013
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