The Complainant is Ruby Life Inc., Canada, represented by SafeNames Ltd., United Kingdom.
The Respondent is Domain Whois Protect Service, India / Web Master Internet Services Private Limited, India. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 9, 2019. On October 9, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 15, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on the same day, 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 October 17, 2019. 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 October 18, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 7, 2019. On November 6, 2019, the Center received a communication from a third party. Accordingly, the Center informed the Parties of the latter communication on November 11, 2019, and notified that it was proceeding to the panel appointment stage. The Center appointed Nicholas Smith as the sole panelist in this matter on November 14, 2019. 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 company, founded in 2002, that operates a number of online dating websites, including Cougar Life, Established Men and Ashley Madison. The Complainant’s Ashley Madison online dating platform operates from the website “www.ashleymadison.com”, was established in 2001, has members in over 50 countries and receives approximately 9.42 million visits per month. The Complainant is the owner of numerous trademark registrations for marks consisting of the words “Ashley Madison” (the “ASHLEY MADISON Mark”) in various jurisdictions including a United States of America (“United States”) registration dated February 10, 2004 (registration number 2812950) for various services in classes 38 and 45. The ASHLEY MADISON Mark has been used in trade since 2002 and has also been registered in Canada, the European Union and Australia. The Domain Name The Complainant makes the following contentions: (i) that the Domain Name is identical or confusingly similar to the Complainant’s ASHLEY MADISON Mark; (ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. The Complainant is the owner of the ASHLEY MADISON Mark, having registered the ASHLEY MADISON Mark in the United States and other jurisdictions. The Domain Name is confusingly similar to the ASHLEY MADISON Mark since it consists of a misspelling of the ASHLEY MADISON Mark being a replacement of the letter “y” with the letter “t”. There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Respondent is not commonly known by the Domain Name nor does the Respondent have any authorization from the Complainant to register the Domain Name. The Respondent is not making a legitimate noncommercial or fair use of the Domain Name. Rather the Respondent is using the Domain Name to resolve to websites hosting pay-per-click links for terms similar to the services offered by the Complainant, for which the Respondent would receive revenue. Such use is not a bona fide offering of services. The Domain Name was registered and is being used in bad faith. By using the Domain Name to resolve to pay-per-click websites that advertise competing services, the Respondent is using the Domain Name to divert Internet users searching for the Complainant to third party websites for commercial gain. Such conduct amounts to registration and use of the Domain Name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar To prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark. The Complainant is the owner of the ASHLEY MADISON Mark, having registered the ASHLEY MADISON Mark as a trademark in various jurisdictions including the United States. The Domain Name consists of a misspelling of the ASHLEY MADISON Mark, replacing the letter “y” with the letter “t”, removing the space between the words and adding the generic Top-Level Domain (“gTLD”) “.com”. The Panel finds that this minor misspelling does not prevent a finding of confusing similarity between the ASHLEY MADISON Mark and the Domain Name. The Panel finds that the Domain Name is confusingly similar to the Complainant’s ASHLEY MADISON Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name. Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name: “Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii): (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the ASHLEY MADISON Mark or a mark similar to the ASHLEY MADISON Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services. The Respondent’s use of the Domain Name for what appears to be websites with links (for which the Respondent is likely to receive revenue from) to websites offering services in direct competition with the services offered by the Complainant does not amount to use for a bona fide offering of goods and services. The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had the opportunity to put on evidence of its rights or legitimate interests, including submissions as to why its conduct amounts to a right or legitimate interest in the Domain Name under the Policy. In the absence of such a Response, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith For the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that the respondent has registered or has 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 the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or (ii) the respondent has 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 the respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location (paragraph 4(b) of the Policy). The Panel finds that the Respondent was aware of the Complainant and its reputation in the ASHLEY MADISON Mark at the time it acquired the Domain Name. There is no obvious reason (and the Respondent has not chosen to provide such a reason), for an entity to acquire a domain name consisting of a minor misspelling of the ASHLEY MADISON Mark and redirect it to sites containing links to/advertisements for the Complainant’s competitors absent any awareness of the Complainant and its ASHLEY MADISON Mark. The registration (or acquisition of registration) of the Domain Name in awareness of the ASHLEY MADISON Mark and in the absence of rights or legitimate interests amounts under these circumstances to registration in bad faith. A number of the Respondent’s Websites offer what appear to be pay-per-click links to various websites, some of which advertise services in direct competition with the Complainant. Given that the Respondent has offered no plausible alternative explanation for the registration of the Domain Name, the Panel finds that that the Respondent is using the Domain Name to intentionally attempt to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the ASHLEY MADISON Mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s Websites. As such, the Panel finds that the Domain Name is being used in bad faith. Accordingly, the Panel finds that the Respondent has registered and used the Domain Name in bad faith 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 Domain Name Nicholas Smith
Sole Panelist
Date: November 26, 2019
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