The Complainant is Tiger Media, Inc., Canada, represented by Silverstein Legal, United States of America (the “United States”).
The Respondent is Manas, Profitz, 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 June 3, 2020. On June 4, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 5, 2020, 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 June 8, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 28, 2020. The Center received email communication from Manas Biswal (who appears to be the Respondent) on June 20 and 29, 2020, but the Respondent did not submit any formal response. Accordingly, the Center notified the Parties that it was proceeding to the panel appointment The Center appointed John Swinson as the sole panelist in this matter on July 7, 2020. 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 Tiger Media, Inc., a company incorporated in Canada. The Complainant provides online adult advertising services. According to the Complainant, the Complainant has offered services under the name JUICYADS since April 2, 2006. The Complainant is the owner of two registered trade marks for “JuicyAds”, the earliest being United States registered trade mark number 3,997,885, registered on July 19, 2011 (“Trade Mark”). The Complainant is also the owner of the domain name The Respondent is Manas, Profitz, India. No formal response was received by the Respondent and therefore little information is known about the Respondent. The the Disputed Domain Name was registered on May 27, 2020. The Disputed Domain Name does not currently resolve to an active website. The Complainant has provided evidence that the Disputed Domain Name formerly resolved to a website that offered to sell the domain name, and advertised other unspecific goods and services. 5. Parties’ Contentions A. Complainant The Complainant makes the following contentions. Identical or confusingly similar The Complainant has prominently and extensively used, promoted and advertised the Trade Mark for over 14 years. The Trade Mark is well recognised by consumers as designating the Complainant as the source of the services. The Disputed Domain Name is identical to the Trade Mark, being a complete and exact reproduction of the Trade Mark. Rights or legitimate interests The Respondent registered the Disputed Domain Name well after the Complainant began using the Trade Mark. The Trade Mark is an arbitrary term that has no meaning outside its use as a Trade Mark. The Respondent is not a licensee of the Complainant and is not otherwise authorised to use the Trade Mark for any purpose. The Respondent is not commonly known by the Disputed Domain Name. The Disputed Domain Name currently resolves to a website that offers to sell the Disputed Domain Name (and advertises other goods and services). The Respondent does not use, and has not made preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services. The Respondent is using the Disputed Domain Name to redirect Internet users to sponsored listings for commercial gain. Registered and used in bad faith The Respondent registered the Disputed Domain Name primarily for the purpose of selling it to the Complainant, who is the owner of the Trade Mark, for valuable consideration in excess of his documented out-of-pocket costs. The day after the Respondent registered the Disputed Domain Name, the Respondent made an unsolicited offer to sell the Disputed Domain Name to the Complainant. Thus, it appears that the Respondent registered the Disputed Domain Name for the very purpose of offering to sell it to the Complainant. The Respondent registered and is using the Disputed Domain Name primarily to profit from and exploit Complainant’s Trade Mark, by misdirecting Internet users to its own website in connection with a revenue-generating scheme pursuant to which the Respondent receives some compensation from revenues generated by searches activated through the Disputed Domain Name. The Respondent also presumably receives click-through fees from the sponsored listings on the website at the Disputed Domain Name. The Trade Mark is unique and arbitrary such that it is unlikely the Respondent devised the term on its own. There is no plausible circumstance under which Respondent could legitimately register or use the Disputed Domain Name. B. Respondent The Respondent did not reply to the Complainant’s contentions. In an informal email communication to the Center, the Respondent said that he purchased the Disputed Domain Name because he is developing an online juice drink cart store where users can order juice drinks online. The Respondent also stated in these communications that the selling price for the Disputed Domain Name was USD 3,000, and in a later communication, USD 1,500. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely: (i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and (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. The onus of proving these elements is on the Complainant even though the Respondent failed to submit a formal response. A. Procedural Issues Informal Response The Center received email communications from the Respondent on June 20 and 29, 2020. These communications are not a formal response because they do not address the elements of the Policy or contain the required certification (see paragraph 5(viii) of the Policy). Despite this, the Panel has taken into account the communications in making its decision. B. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark. The Disputed Domain Name incorporates the entirety of the Trade Mark, with no additional elements. The Top Level Domain (“TLD”) “.online” can be disregarded under the first element. The Disputed Domain Name is identical to the Trade Mark. The Complainant succeeds on the first element of the Policy. C. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests. The Panel considers the Complainant has made out a prima facie case. This finding is based on the following: - The Respondent is not using (and as discussed below, has not made demonstrable preparations to use) the Disputed Domain Name in connection with a bona fide offering of goods or services. As at the date of this decision, there is no active website associated with the Disputed Domain Name. The Complainant has provided evidence that the Disputed Domain Name formerly resolved to a page offering the Disputed Domain Name for sale and which contained sponsored links. - The Complainant has not authorised or licensed the Respondent to use the Trade Mark in the Disputed Domain Name. - There is no evidence that the Respondent has been commonly known by the Disputed Domain Name or has registered or has common law trade mark rights in relation to this name. - The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. The website at the Disputed Domain Name offered the Disputed Domain Name for sale, and also formerly advertised goods and services, which the Respondent presumably received some revenue from. The Disputed Domain Name is also identical to the Trade Mark, and therefore carries a high risk of implied affiliation (see section 2.5.1 of of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The Respondent claims that he purchased the Disputed Domain Name because he is developing an online juice drink cart store where users can order juice drinks online. The Respondent had the opportunity to provide evidence of preparations to use the Disputed Domain Names in this manner, but did not do so beyond these statements. If not independently verifiable by the panel, preparations to use the domain name in connection with a bona fide offering of goods or services cannot be merely self-serving statements but should be inherently credible and supported by relevant pre-complaint evidence (see section 2.2 of WIPO Overview 3.0). The Panel also seriously doubts that the Respondent would independently choose the term JUICYADS for an online juice drink store. As discussed in more detail in element three below, the evidence before the Panel suggests that the Respondent registered the Disputed Domain Name with the Complainant in mind. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy. D. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The Panel finds that the Respondent registered the Disputed Domain Name primarily to sell the domain name to the Complainant for valuable consideration in excess of the Respondent’s costs related to the Disputed Domain Name. The following circumstances support this finding: - The Complainant has used the Trade Mark since 2006, and has had registered rights in the Trade Mark since 2011. - The Complainant has also owned and used the domain name - The Disputed Domain Name is identical to the Trade Mark. While the Trade Mark is made up of two common words or terms, JUICYADS as a whole has no dictionary meaning and is not an obvious choice for an online juice store as the Respondent asserts; notably, the “ads” portion does not fit that narrative. The Respondent has not provided any credible evidence as to why he chose the Disputed Domain Name. - The Respondent contacted the Complainant one day after registering the Disputed Domain Name, and asked the Complainant what price the Complainant would pay for the transfer of the Disputed Domain Name. The Respondent has since made various offers to sell the Disputed Domain Name for varying amounts between USD 750 and USD 3,000. The Panel considers that such amounts would be well in excess of the Respondent’s out of pocket costs. - The only use which has been made of the Disputed Domain Name is to offer the Disputed Domain Name for sale, and to advertise goods and services through sponsored links. These sponsored links do not appear to be relevant to juice or even to “juicy advertisements”. The Panel finds that the Respondent’s intent in registering the Disputed Domain Name was to profit from or otherwise exploit the Complainant’s Trade Mark. This is evidence of registration and use in bad faith under paragraph 4(b)(i) of the Policy. For the reasons listed above, the Panel finds that the Complainant has succeeded on the third 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, John Swinson
Sole Panelist
Date: July 21, 2020
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