The Complainant is Elite Daily Inc. of New York, New York, United States of America ("United States"), represented by Adlex Solicitors, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Domain Administrator, PrivacyG of Phoenix, Arizona, United States / Bryan Rivas, aelitedaily of Surrey, British Columbia, Canada. 2. The Domain Name and Registrar
The disputed domain name is registered with NameSilo, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 27, 2016. On July 27, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 27, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 28, 2016, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 28, 2016.
The Center verified that the Complaint together with 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 1, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 21, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 22, 2016.
The Center appointed Andrew F. Christie as the sole panelist in this matter on August 26, 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
Since about 2011 the Complainant and its predecessors have operated an online news platform branded "Elite Daily", which targets the so-called "millennial generation". The Complainant was incorporated in 2012, and employs a full time staff of over 20 in-house writers and also uses over 5,000 contributing writers. The Complainant's website has over 70 million monthly readers, and in December 2014 it ranked as the seventh most shared site on Facebook with over 2 million shares. The Complainant's site has hundreds of thousands of followers on Facebook, Instagram, Twitter and its YouTube account. The Complainant is the owner of a United States trademark registration for the word mark ELITE DAILY, filed February 9, 2012, and registered December 2, 2014, in respect of "on-line non-downloadable general feature magazines".
The disputed domain name was registered on May 6, 2015. The Complainant has provided screenshots from July 21, 2016, of a website resolving from the disputed domain name showing an online news platform that is very similar in its look and feel to the Complainant's website. That website contains photographs and descriptions that appear to have been copied from the Complainant's website, and wrongly refers to some of the Complainant's contributing authors as being authors contributing to that website. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name differs only by the addition of the letter "a" before the word "elite", thus creating a misspelling of the Complainant's trademark ELITE DAILY. This has the potential to cause confusion with the Complainant's trademark, both visually and phonetically.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name because: (i) the Complainant has no association with the Respondent and has never authorized or licensed the Respondent to use its trademarks; (ii) the Respondent has clearly used the disputed domain name and the Complainant's trademarks to attract, confuse and profit from Internet users seeking the Complainant and/or to disrupt the business of a competitor which is not a bona fide use; (iii) the Respondent's only use of the name comprised in the disputed domain name has been to attract, confuse and profit from Internet users seeking the Complainant, rather than to be commonly known by the disputed domain name; and (iv) it is clear that the Respondent was out for commercial gain and not making a legitimate noncommercial or fair use of the disputed domain name.
The Complainant contends that the disputed domain name was registered and is being used in bad faith because: (i) the Respondent, a competitor of the Complainant, registered the disputed domain name for the purpose of unfairly disrupting the business of the Complainant by diverting business intended for the Complainant; (ii) the Respondent was clearly aware of the Complainant and its business when it registered the disputed domain name as it is a deliberate misspelling of the Complainant's trademark and the Respondent has copied extensively from the Complainant's website; (iii) it is inconceivable that the Respondent intended to operate a genuine business with a domain name which reflected a competitor's trademark; (iv) the use of the disputed domain name, which is a misspelling of the Complainant's trademark, is intended by the Respondent to create a likelihood of confusion in the minds of the public as to an association between the Respondent and the Complainant; and (v) the Respondent has not responded to, let alone denied, the assertions of bad faith in the pre-action communications by the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name incorporates the whole of the Complainant's registered ELITE DAILY trademark, and prefaces it with the letter "a" and follows it with the generic Top-Level Domain ("gTLD") ".com". The distinctive component of the disputed domain name is the string "elitedaily", which is identical to the Complainant's ELITE DAILY trademark (once the space between the words is ignored). The Panel finds the addition of the letter "a" does not lessen the confusing similarity between the disputed domain name and the Complainant's ELITE DAILY trademark. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Respondent is not a licensee of, or otherwise affiliated with, the Complainant, and has not been authorized by the Complainant to use its ELITE DAILY trademark. The Respondent has not provided any evidence that it has been commonly known by, or has made a bona fide use of, the disputed domain name, or that it has, for any other reason, rights or legitimate interests in the disputed domain name. The evidence provided by the Complainant shows that the disputed domain name was used to resolve to a website which mirrored the look of, and contained material copied from, the Complainant's website. According to the present record, therefore, the disputed domain name is not being used in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The disputed domain name was registered more than three years after the original founders of the Complainant first commenced use of the ELITE DAILY trademark. The evidence on the record provided by the Complainant with respect to its use of the ELITE DAILY trademark and the content of the website to which the disputed domain name resolves, combined with the absence of any evidence provided by the Respondent to the contrary, is sufficient to satisfy the Panel that, at the time the disputed domain name was registered, the Respondent knew of the Complainant's ELITE DAILY trademark and knew that it had no rights or legitimate interests in the disputed domain name. Furthermore, the evidence on the record provided by the Complainant with respect to the Respondent's use of the disputed domain name indicates that the Respondent has used the disputed domain name to create a likelihood of confusion in the minds of the public as to an association between the Respondent's website and the Complainant, having the effect of disrupting the business of the Complainant. For all these reasons, the Panel is satisfied that the disputed domain name has been registered and is being used in bad faith. 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.
Andrew F. Christie
Sole Panelist
Date: September 9, 2016
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