The Complainant is Ecom Holdings Pty Ltd of Southport, Australia, represented by Fisher Adams Kelly Callinans, Australia.
The Respondent is Innovation Consulting LTD of Hong Kong, China / Veelin Admin, Veelin International Inc of San Francisco, United States of America / WhoisGuard Protected, WhoisGuard, Inc of Panama City, Panama. 2. The Domain Names and Registrars
The disputed domain names , , , , , , , , , and are registered with eNom, Inc.
The disputed domain names , , , , , , , and are registered with NameCheap, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 4, 2016. On August 4, 2016, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On August 8, 2016, the Registrars transmitted by email to the Center their verification responses 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 August 12, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 1, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 2, 2016.
The Center appointed Steven A. Maier as the sole panelist in this matter on September 6, 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.
The Complainant has requested consolidation of the proceedings on the grounds that, despite differences in the relevant WhoIs particulars, namely the use of a privacy service for some of the disputed domain names, all of the disputed domain names are in fact under common control. 4. Factual Background
The Complainant is a limited company incorporated in Australia. It provides dating agency and related services and is the owner of registered trademarks in Class 45 including the following:
- Brazil trademark number 830429905 for a heart device and the term BRAZILCUPID registered on October 9, 2012;
- Colombia trademark number 394455 for a heart device and the term COLOMBIANCUPID registered on January 29, 2010;
- Dominican Republic trademark number 2009-12068 for a heart device and the term DOMINICANCUPID registered on May 21, 2010;
- International (Madrid) trademark number 1004150 for a heart device and the term FILIPINOCUPID registered on May 21, 2009 and designating a total of 31 countries;
- Australia trademark number 1273547 for a heart device and the term HONGKONGCUPID registered on November 21, 2008;
- International (Madrid) trademark number 1006395 for a heart device and the term INDONESIANCUPID registered on May 21, 2009 and designating the United States;
- International (Madrid) trademark number 1004694 for a heart device and the term JAPANCUPID registered on May 21, 2009 and designating the Japan and the United States;
- Republic of Korea trademark number 41-0227860 for a heart device and the term KOREANCUPID registered on March 7, 2012;
- International (Madrid) trademark number 1006393 for a heart device and the term LATINCUPID registered on May 21, 2009 and designating the United States;
- Malaysia trademark number 2013055521 for a heart device and the term MALAYSIANCUPID.COM registered on January 7, 2015;
- Mexico trademark number 1141307 for a heart device and the term MEXICANCUPID registered on February 3, 2010;
- International (Madrid) trademark number 1004154 for a heart device and the term RUSSIANCUPID registered on May 21, 2009 and designating a total of 31 countries including Russia;
- Thailand trademark number 730151 for a heart device and the term THAICUPID registered on May 21, 2009;
- International (Madrid) trademark number 1006391 for a heart device and the term VIETNAMCUPID registered on May 21, 2009 and designating the United States.
The disputed domain names were registered on the following dates:
on February 7, 2016
on March 30, 2016
on February 7, 2016
on February 8, 2016
on January 29, 2016
on February 4, 2016
on February 1, 2016
on February 2, 2016
on February 2, 2016
on February 8, 2016
on February 1, 2016
on February 8, 2016
on March 21, 2016
on February 2, 2016
on May 9, 2016
on January 21, 2016
on March 21, 2016
on January 20, 2016
The Complainant has produced evidence by way of screen prints that all the disputed domain names have resolved to similar websites, offering online dating services under the headings "Meet Brazil Singles with Brazil Cupid", "Meet China Singles with China Cupid" and so forth in respect of each of the disputed domain names respectively. 5. Parties' Contentions A. Complainant
The Complainant states that it operates dating agency services, Internet based dating, matchmaking and personal introduction services. It submits that it is an essential feature of its brand that it uses the name of a country or nationality in conjunction with the word "Cupid", and this is reflected by its trademarks referred to above and a portfolio of ".com" domain names corresponding to those trademarks which the Complainant has operated since 1999. The Complainant states that its services are available in six languages and that its online platforms have a combined monthly average of over 66 million unique users and generate page traffic of over 282 million monthly page views.
The Complainant submits that the disputed domain names are identical or confusingly similar to a trademark or service mark in which it has rights. The Complainant states that each of the disputed domain names replicates its trademarks referred to above and its formula of combining a country or nationality with the word "Cupid". The Complainant submits that the minor textual differences in certain of the disputed domain names and use of differing Top-Level Domains ("TLDs") does not affect the confusing similarity between the disputed domain names and the Complainant's trademarks and that members of the public are liable wrongly to conclude that each of the disputed domain names emanates from or is associated with the Complainant.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant states that it has not licensed or permitted the Respondent to use its trademarks, that the Respondent is not commonly known by the disputed domain names, and that the Respondent is neither making use of the disputed domain names in connection with a bona fide offering of goods or services or making legitimate noncommercial or fair use of the disputed domain names. The Complainant alleges that, on the contrary, the Respondent is using the disputed domain names to imply an affiliation with the Complainant and to divert Internet users to the Respondent's websites, which mimic and compete with the Complainant's websites.
The Complainant contends that the disputed domain names have been registered and are being used in bad faith. The Complainant submits that it had operated under its trademarks for many years prior to the Respondent's registration of the disputed domain names. It also contends that a named individual who provided search engine optimization services to the Complainant subsequently became connected with the Respondent Veelin International. In these circumstances, the Complainant alleges that the Respondent must have been aware of the Complainant's trademarks when registering the disputed domain names.
The Complainant repeats that the Respondent is using the disputed domain names to mislead unsuspecting Internet users by diverting them to the Respondent's websites, which are similar to and compete with those of the Complainant. It is therefore attempting in bad faith to trade off the goodwill and reputation of the Complainant.
The Complainant requests the transfer of the disputed domain names. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) that the disputed domain names have been registered and are being used in bad faith.
Even in a case where the Respondent has not contested the Complaint, it is still necessary for the Complainant to establish that all of the three above elements are present. A. Multiple Named Respondents
The Panel notes that at the time the Complaint was filed, a number of the disputed domain names were registered under a privacy shield. The Complainant has requested consolidation of the proceedings on the basis that the disputed domain names are all in fact under common control. In reply to the Center's verification request, the Registrars confirmed that all disputed domain names were registered to "Veelin Admin, Veelin International Inc". Given that all of the disputed domain names are registered to a single registrant, the Complainant's consolidation request is moot.
The Complainant has also named "Innovation Consulting LTD" as a Respondent, based on the contact information provided on the websites associated with the disputed domain names, and this entity appears to be the beneficial owner or the company behind the services offered under the disputed domain names. Under these circumstances, the Panel would have accepted a response from either of the Respondents, but notes that no party has come forward in this proceeding claiming any interest in the disputed domain names. In any event, the Panel proceeds to discussion of the substantive elements, noting that the Respondents are acting in concert and that there is commonality in the control over the disputed domain names. The Respondents are hereafter referred to as "the Respondent". B. Identical or Confusingly Similar
The Complainant has established that it is the owner of numerous trademark registrations worldwide which comprise the name of a country or nationality linked to the name "Cupid". It has also established to the satisfaction of the Panel that it has traded under this formula in many countries for an extended period and that its trademarks and corresponding domain names have come to be identified by the public in connection with the Complainant and its services. While both the country or nationality names and the term "Cupid" could be viewed as generic or descriptive on their own, the Panel is satisfied that they have gained a secondary meaning distinctive of the Complainant and its services when used in conjunction with one another. The Panel finds that each of the disputed domain names incorporates all or substantially all of one of the Complainant's trademarks and that the minor textual differences and TLDs selected by the Respondent are not sufficient to distinguish the disputed domain names from the Complainant's trademarks. Therefore, the Panel finds that that the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights. C. Rights or Legitimate Interests
In the view of the Panel, the Complainant's submissions referred to above give rise to a prima facie case for the Respondent to answer that it has no rights or legitimate interests in respect of the disputed domain names. However, the Respondent has not participated in this administrative proceeding and has not provided any explanation for its registration or its use of the disputed domain names, whether in accordance with any of the criteria set out in paragraph 4(c) of the Policy or otherwise. The Panel having no other evidence of any rights or legitimate interests on the Respondent's part, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain names. D. Registered and Used in Bad Faith
On the basis of the Complainant's evidence, which is uncontradicted by the Respondent, the Panel finds it highly likely that the Respondent was aware of the Complainant and its trademarks at the date of registration of the disputed domain names. The Panel infers in the circumstances that the Respondent registered the disputed domain names with the dishonest intention of misleading Internet users into believing that any website linked to the disputed domain names was owned, operated or authorized by the Complainant. The Panel also finds that the Respondent has used the disputed domain names for the purposes of websites which take unfair advantage of the Complainant's goodwill by offering services similar to those offered by the Complainant in competition with the Complainant's websites. Therefore, the Panel finds that by using the disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of its websites or of a product or service on its websites (paragraph 4(b)(iv) of the Policy). The Panel therefore concludes that the disputed domain names have been registered and are 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 names, , , , , , , , , , , , , , , , , , be transferred to the Complainant.
Steven A. Maier
Sole Panelist
Date: September 20, 2016
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