The First Complainant is Avid Dating Life Inc. and the Second Complainant is Cougar Life Inc. both of Toronto, Ontario, Canada and both represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland (“UK”).
The Respondent is Huan Fenghuan of ChengDu, SiChuan, China. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by the First Complainant (referred to here as “the Complainant” or “the First Complainant”) on March 28, 2014. On March 28, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 28, 2014, 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.
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 April 3, 2014. On April 8, 2014, the Center received an informal email communication from the Respondent. On the same date, the Center informed the parties of the possibility of suspending the proceeding in order to explore a possible settlement. On April 10, 2014, the Center notified the suspension of the proceeding. On May 2, 2014, the Complainant requested the reinstitution of the proceeding. In accordance with the Rules, paragraph 5(a), the due date for Response was May 15, 2014. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on May 19, 2014.
The Center appointed Adam Samuel as the sole panelist in this matter on May 22, 2014. 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.
On May 26, 2014, the Panel issued the following procedural order:
“The Panel notes that the Complainant is not the owner of any of the registered trademarks for the name Cougar Life. On all the trademark registration documents supplied by the Complainant, this appears to be Cougar Life Inc. Nor does the Complainant appear to use this name in commerce at all or at least in such a way as to constitute a common law trademark right.
The Panel orders the Complainant to produce evidence that it has any rights in relation to the name Cougar Life. This may consist of any evidence that the Complainant has the right to use the name as a result of a licence given to it by the trademark owner, Cougar Life Inc. This may also consist of evidence of the corporate relationship between the Complainant and Cougar Life Inc.
The Panel also orders those representing the Complainant to explain why the complaint has not been filed in the name of Cougar Life Inc. when that company is the registrant of the domain name and the owner of the trademark COUGAR LIFE on which the Complainant relies.”
The Complainant’s representatives replied on May 29, 2014, in the following terms:
“As per your order below we have requested the requisite supporting information from our client and shall forward the same upon receipt.
We, the complainant’s representatives, confirm that there was an error in our filing and apologise for our oversight.”
This was then followed up by an email from the Complainant’s representatives of June 2, 2014, in the following terms:
“In connection with the proceedings I hereby attest that Cougar Life supports the application of Avid Dating Life Inc. on Cougar’ Life’s behalf seeking to retrieve any infringing domain names incorporated [sic] their trademarks; Cougar Life confirm that the Avid Life Media Inc. is the parent company of Cougar Life and Avid Dating Life Inc. Cougar Life further confirms that they have conferred rights to use the trademark COUGAR Life in the course of trade to both Avid Dating Life Inc. and Avid Life Media Inc.”
In the light of these replies, on June 3, 2014, the Panel issued a second procedural order which recited the terms of the previous order and the responses to it and then stated:
“Although no application is contained in the two responses, it can be implied from them that the Complainant should have been Cougar Life Inc. and not the Complainant and that both the Complainant and Cougar Life Inc. wish the complaint to be pursued ultimately “on Cougar Life’s behalf”. That involves a change in the Complainant’s name or an addition of a Complainant. If the Panel concluded that the result of the filing of the Complaint in the wrong name meant that the Complaint failed, the only effect of this would be that Cougar Life Inc. would file another complaint. Since the Respondent has already accepted that it should not have registered the domain name in an e-mail dated April 8, 2014, this would serve no useful purpose.
Paragraph 10(a) of the Rules entitles the Panel to conduct the administrative proceeding in such manner as it considers appropriate in accordance with the Policy and the Rules. In the circumstances, the Panel orders the amendment or allows the implied application by the Complainant for an amendment of the Complaint to add Cougar Life Inc. as a Second Complainant.
Paragraph 10(b) of the Rules requires the Panel to ensure in all cases that the Parties are treated with equality and given a fair opportunity to present their case. In the circumstances, the Panel invites the Respondent’s submissions on this and any other matter raised by this Complaint, the first Procedural Order, the response to it and this Procedural Order within the next 20 days which is the same length of period that the Respondent would have had if this Complaint was refiled. During that time, the Complainants may also make any submissions that they consider appropriate.”
The Center received no response to the second procedural order within the 20 days stipulated. The result is that the Complaint has been amended to include the Second Complainant as a Complainant and to treat as its contentions, those presented in the Complaint by the First Complainant. 4. Factual Background
The First Complainant is a sister company of the Second Complainant both of which are owned by Avid Life Media Inc., a social entertainment media company. The Second Complainant operates an online dating service for older women seeking relationships with younger men. It is the owner of a United States of America trademark registration for the name COUGAR LIFE, number 3929421 registered on March 8, 2011. The disputed domain name was registered on October 9, 2013. The Second Complainant markets its services through the domain name , registered on April 7, 2006. 5. Parties’ Contentions A. Complainants
The disputed domain name consists of the Second Complainant’s trademark COUGAR LIFE and the generic word “login”. The addition of a generic word is not sufficient to avoid a finding of confusing similarity as the mark is clearly recognizable in the domain name. The additional generic word would reinforce the association in an Internet user’s mind between the disputed domain and the Complainants. When users are looking to use a social media or dating site it is normal to log into the site and thus they would think that the dispute domain name would resolve to the Complainants’ website.
The Complainants have not authorized, licensed or otherwise given permission to the Respondent to use the trademark COUGAR LIFE. The Respondent has no connection with the Complainants. Nothing indicates that the Respondent is commonly known by the name COUGAR LIFE or as COUGAR LIFE login.
The words “cougar” and “life” have ordinary dictionary meanings but when placed together, an Internet user would naturally assume a connection to the Complainants and their services.
The Respondent originally used the disputed domain name to advertise a competing dating service. After receiving a “cease and desist letter” from the Complainants’ representative, the Respondent installed a different website offering a similar service to the Second Complainant using a similar colour scheme to that used by the Second Complainant. All this use took unfair advantage of the Second Complainant’s mark and reputation for the purpose of redirecting unsuspecting Internet users to a source different from the one intended. The disputed domain name is being used to lure Internet traffic to competitors.
The website to which the domain now resolves dishonestly gives the impression that it has existed since 2008 and refers to itself using the Second Complainant’s trademark COUGAR LIFE. B. Respondent
The Respondent did not reply to the Complainants’ contentions except that on April 8, 2014, the Respondent emailed the Center to say:
“I have closed this website “www.”. I am so sorry to disturb you. I will never do such thing anymore. Thank you for your forgive.” 6. Discussion and Findings
Under the Policy, the Complainants must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which they have rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The disputed domain name consists of the Second Complainant’s trademark followed by the word “login” and the generic Top-Level Domain (“gTLD”) “.com”. “Login” is a standard term commonly used on websites of all kinds but particularly membership ones. The addition of a generic word and the generic Top-Level Domain (“gTLD”) “.com” to a trademark does not affect the confusing similarity between the disputed domain name and a trademark, where the generic word has a meaning that relates to websites generally and does not interact with the trademark name to distinguish the disputed domain name from the Second Complainant’s trademark. Accordingly, the Panel concludes that the disputed domain name is confusingly similar to the Second Complainant’s trademark.
This and the conclusions reached on the other two parts of this decision makes it unnecessary for the Panel to reach any conclusion about whether the First Complainant has any common law or other rights to the Second Complainant’s trademark. B. Rights or Legitimate Interests
The Respondent is not called “Cougarlifelogin” or anything similar and does not appear to engage in a legitimate trade under that or any related name. There is no evidence that the Second Complainant has ever authorized the Respondent to use its trademarks. For these reasons, and in the absence of any response on this point, notably one contradicting the Complainants’ claim that the Respondent has never been connected to it in any way, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Although consisting of three commonly used words, the disputed domain name brings together two words, “cougar” and “life” that have no inherent connection. This suggests that the Respondent when registering the disputed domain name was aware of the Second Complainant’s trademark and business. This is reinforced by the subsequent use by the Respondent of the disputed domain name. The fact that the Respondent has subsequently used the domain name in issue to divert customers to competitors of the Complainant is further evidence of bad faith: Banca di Roma S.p.A. v. Unasi Inc. a/k/a Domaincar,WIPO Case No. D2006-0068. The Respondent’s liberal use of the Complainant’s trademark on the site to which the disputed domain name has resolved in the past is also evidence of bad faith use. The Panel concludes that the domain name was registered and used in bad faith by the Respondent. 7. Decision
The Second Complainant has been able to prove the three elements of the Policy. It owns the trademark in COUGAR LIFE. In the circumstances, it is unnecessary to decide whether the First Complainant would have been successful in its Complaint. This is particularly the case now that it has been accepted that the Complaint should have been filed by the Second Complainant and was being pursued by the First Complainant on behalf of the Second Complainant.
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 Second Complainant.
Adam Samuel
Sole Panelist
Date: June 24, 2014
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