Complainant is M, LLC of Dallas, Texas, United States of America ("United States"), represented by Locke Lord LLP., United States.
Respondent is Domain Privacy Service F/B/O Registrant of Orem, Utah, United States / Rhett Murrah of Hawthorne, California, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with FastDomain, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 3, 2017. On August 3, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 4, 2017, 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 Complainant on August 7, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on August 7, 2017.
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 Respondent of the Complaint, and the proceedings commenced on August 15, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 4, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on September 8, 2017.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on September 22, 2017. 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
Complainant, M, LLC, is in the business of providing online dating services. Since at least as early as August 2012, Complainant has offered, through its wholly owned business unit Tinder, an online dating service using the name and mark TINDER. Complainant has provided copies of its United States trademark registrations for TINDER in connection with Complainant's dating services and related products (Registration Nos. 4,479,131, 4,976,225, 5,067,593 and 5,067,595). The earliest of Complainant's United States registrations for the TINDER mark issued to registration on February 4, 2014. Complainant owns the domain name , which it has used for its online dating services since 2012. Complainant also uses the TINDER mark for a downloadable mobile application for online based dating which is offered in IOS and Android versions.
Respondent, who uses an address in the United States, registered the disputed domain name on May 7, 2016. The disputed domain name currently resolves to a parked under construction page. The disputed domain name apparently previously resolved to a website entitled "World Tinder Women" that featured pictures and text about women in various locations around the world. 5. Parties' Contentions A. Complainant
Complainant asserts that it owns and has used the TINDER mark since 2012 in connection with its online dating services and products. Complaint maintains that the TINDER mark is well-known worldwide, as Complainant's TINDER mobile application for dating services has been downloaded over 100 million times and had an estimated 50 million users in March 2015.
Complainant contends that the disputed domain name is confusingly similar to Complainant's TINDER mark as it fully incorporates the TINDER mark. Complainant maintains that the addition of the descriptive words "world" and "women" in the disputed domain name does differentiate the disputed domain name but increases the likelihood of confusion by suggesting that the disputed domain name is part of or somehow connected to Complainant's TINDER online dating service.
Complainant argues that Respondent lacks any rights or legitimate interests in the disputed domain name because Respondent (a) has never used the disputed domain name for a bona fide offering of goods and services, (b) is not commonly known by the disputed domain name, and (c) is not making a legitimate noncommercial or fair use of the disputed domain name, as Respondent has only used the disputed domain name to deceitfully associate a web page with Complainant's TINDER services for commercial gain.
Finally, Complainant asserts that Respondent has acted in bad faith since Respondent had actual or constructive notice of Complainant's prior rights in the TINDER mark. Complainant further argues that Respondent's bad faith registration and use is evident from the fact that Respondent registered the disputed domain name four years after Complainant's first use of the TINDER mark and used such in order to confuse consumers by redirecting web traffic to a website that offers dating and match making services that could be seen as affiliated with Complainant's TINDER online dating service. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond to the Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant's claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A panel, however, may draw appropriate inferences from a respondent's default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"); see also The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. A. Identical or Confusingly Similar
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0 at sections 1.2.1 and 1.3.2.0. Complainant has provided evidence that it owns several trademark registrations for the TINDER mark in the United States, where Respondent is allegedly located, that issued to registration prior to Respondent's registration of the disputed domain name in May 2016. Complainant has also submitted some evidence that the TINDER mark has been used in connection with online dating services for several years prior to the registration of the disputed domain name.
With Complainant's rights in the TINDER mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain ".com") is identical or confusingly similar with Complainant's mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross,WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that a disputed domain name that fully incorporates a Complainant's mark is sufficient to meet the threshold. See, e.g., Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen, WIPO Case No. D2014-0657(finding disputed domain name confusingly similar to the complainant's VOGUE mark).
In the instant proceeding, the disputed domain name is confusingly similar to Complainant's TINDER mark as it incorporates the TINDER mark in its entirety. The addition of the terms "world" and "women" does not distinguish the disputed domain name from Complainant's TINDER mark, given that the terms could be seen by web users as suggesting a website connected or related to the TINDER online dating service.
The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in the TINDER mark and in showing that the disputed domain name is confusingly similar to that trademark. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
Based on the evidence submitted in this case, it appears that Respondent, who is not commonly known by the TINDER name, registered the disputed domain name some four years after Complainant first started using the TINDER mark for an online dating service. Given that Respondent appears to have used the disputed domain name for a website that features pictures of women from different parts of the world accompanied by text that expressly refers to the TINDER service, such as "Women on Tinder are pretty, and there are many foreign girls" or "… women to be found on Tinder," it seems more likely than not that Respondent was well aware of Complainant's rights in the TINDER name and mark when he registered and began using the disputed domain name for a website related to online dating. As none of the evidence submitted by Complainant concerning Respondent's activities has been countered or contested by Respondent, the Panel concludes that Respondent did not register the disputed domain name for a legitimate noncommercial purpose, but did so to somehow commercially benefit from the disputed domain name.
Given that Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and given Respondent's above noted actions and failure to file a response, the Panel concludes that Respondent does not have rights or legitimate interests in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances indicating bad faith registration and use on the part of a domain name registrant, namely:
"(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."
In the present case, the evidence before the Panel shows that (i) the disputed domain name consists of the TINDER mark along with common words that could be seen by web users as suggesting a website related to the TINDER online dating service, and (ii) Respondent has only used the disputed domain name to redirect web traffic to an online dating related website full of pictures of women from around the world with text suggesting that the women shown can be found on the TINDER service. As Respondent registered the disputed domain name several years after Complainant adopted and made use of the TINDER mark for its online dating service and associated mobile application, it appears more likely than not that Respondent intentionally registered and used the disputed domain name consisting of the TINDER mark in order to take advantage of the TINDER trademark for commercial gain. Such evidence, none of which is contested by Respondent who has chosen not to participate in this proceeding, leads this Panel to conclude that Respondent opportunistically targeted Complainant and the TINDER mark in bad faith.
Accordingly, the Panel finds that Complainant succeeds under this element 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 Complainant.
Georges Nahitchevansky
Sole Panelist
Date: October 10, 2017
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