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 Donald Kelly of Toronto, Ontario, Canada. 2. The Domain Name and Registrar
The disputed Domain Name is registered with DreamHost, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 1, 2015. On December 1, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 4, 2015, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 9, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 29, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 7, 2016.
The Center appointed Christopher Pibus as the sole panelist in this matter on January 13, 2016. 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 is a Canadian owned provider of a specialized online dating service operating under the trade name "COUGAR LIFE". Launched in 2009, the dating service caters to older women ("cougars") and younger men ("cubs"). The Complainant owns trademark registrations in Canada, the United States of America and Europe for its COUGAR LIFE trade name, including:
Canadian Trademark No. TMA774395 COUGAR LIFE, registered on August 13, 2010
U.S. Trademark No. 3929421 COUGAR LIFE, registered on March 8, 2011
Community Trademark No. 010860559 COUGAR LIFE, registered on September 28, 2012
The Complainant's dating service currently has over 5,000,000 members. The Complainant is present on social media, including Twitter, Facebook, and YouTube, and has been the subject of media coverage and discussion by NBC Sports, ESPN, FOX NEWS, and Playboy. The Complainant also advertises its service through a variety of media.
The Complainant owns numerous domain names incorporating the COUGAR LIFE trademark which resolve to its primary website at "".
The disputed Domain Name was registered on February 25, 2015. At the time the Complaint was filed, the disputed Domain Name resolved to the Complainant's primary website at "". 5. Parties' Contentions A. The Complainant
(a) Identical or Confusingly Similar
The Complainant relies on its trademark registrations for COUGAR LIFE, as listed in section 4 above.
The Complainant contends that the disputed Domain Name is identical or confusingly similar to the COUGAR LIFE trademark. The Complainant contends that the use of lower case letters and removal of a space in the trademark is a difference without significance. The Complainant contends that the applicable top-level suffix ".net" should be disregarded as it is a technical requirement of registration. The Complainant further contends that the addition of the generic word "dating" does not distinguish the disputed Domain Name from the Complainant's trademark as it is descriptive of the services offered by the Complainant under its registered COUGAR LIFE trademark.
(b) Rights or Legitimate Interest
The Complainant contends that the Respondent does not have any legitimate rights or interests in the Domain Name. The Respondent is not commonly known by the name "cougar life dating", and has never been authorized or licensed by the Complainant.
The Complainant further contends that the Respondent's stated intention (as expressed in pre-Complaint correspondence) to use the disputed Domain Name to develop a blog incorporating ads related to COUGAR LIFE to drive traffic is not a bona fide offering of goods and/or services.
(c) Registered and Used in Bad Faith
The Complainant submits that the Respondent registered and is using the disputed Domain Name in bad faith because the Respondent must have been aware of the Complainant's COUGAR LIFE and services. The Complainant submits that it sent a Cease and Desist notification to the Respondent on June 1, 2015 and a follow up notification on June 8, 2015. The Complainant submits that a response was received on June 8, 2015 indicating that the Respondent was developing a blog that would use COUGAR LIFE affiliate ads in order to drive consumer traffic. The Respondent also indicated his willingness to transfer the disputed Domain Name to the Complainant in exchange for $1,500 CAD, allegedly for his development costs.
The Complainant contends that the Respondent registered the disputed Domain Name to mislead Internet users and to capitalize on the goodwill the Complainant has built up in its COUGAR LIFE trademarks. The Complainant contends that by having the disputed Domain Name resolve to the Complainant's primary website, the Respondent would be able to pass himself off as the Complainant. The Complainant contends that in the future the Respondent could use the disputed Domain Name to host its own website, which would confuse the Internet user as to who owns the website and could entice the Internet user to provide personal and sensitive information. B. The Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) The disputed Domain Name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights;
(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 Panel finds that the Complainant has established registered trademark rights in the mark COUGAR LIFE by virtue of its trademark registrations, listed in section 4 above.
The Panel further finds that the disputed Domain Name is confusingly similar to the Complainant's registered trademark COUGAR LIFE. The disputed Domain Name contains, as a dominant element, the Complainant's trademark COUGAR LIFE, combined with the descriptive term "dating". The addition of this term does not serve to distinguish the disputed Domain Name; rather it is descriptive of the dating services offered by the Complainant under its registered "COUGAR LIFE" trademark.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel notes that the Respondent did not file formal responding materials in this proceeding, and did not dispute any of the facts submitted by the Complainant. Accordingly, the statements and evidence submitted by the Complainant are accepted by the Panel as uncontradicted support for the Complainant's position and argument.
The Panel finds that the Respondent is not commonly known by the name "cougar life dating", is not sponsored or affiliated with the Complainant, and was never authorized or licensed by the Complainant to use the name.
The Complainant has filed sufficient evidence to support its claim to have used the COUGAR LIFE trademark and trade name since at least as early as August 13, 2010. As a result of this evidence, and with no response from the Respondent to the contrary, the Panel is prepared to accept that the Respondent was likely aware of the Complainant's trademark and services. The Panel has no evidence before it to support a finding that the Respondent had a legitimate interest or right to register the disputed Domain Name.
Furthermore, the Panel finds that the use of a confusingly similar trade name in association with a website that redirects to the Complainant's main website (presumably for referral fees) is not evidence of a bona fide offering of goods and services as defined under the Policy. Additionally, the Respondent's alleged intention to create a blog is not evidence of a bona fide service or offering of goods under the Policy.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel finds, on the evidence filed, that the Respondent was aware of the Complainant's trademark rights in COUGAR LIFE when the disputed Domain Name was registered on February 25, 2015, and when the Respondent arranged for his associated Internet traffic to be re-directed to the Complainant's website. The Panel finds that this re-directing of users in this manner constitutes a bad faith attempt to trade on the goodwill and reputation of the Complainant's COUGAR LIFE marks.
The Panel Finds, in absence of any evidence to the contrary, that the disputed Domain Name was registered and used in bad faith.
The Panel finds that Complainant has satisfied the requirement under Paragraph 4(a)(iii) 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.
Christopher Pibus
Sole Panelist
Date: January 27, 2016
Full & Egal Universal Law Academy