Complainant is Tinder, Inc. of Dallas, Texas, United States of America, represented by Locke Lord LLP of Dallas, Texas, United States of America.
Respondent is Private Registrant, c/o Gandi SAS of Paris, France / Mike Hello of Amsterdam, the Netherlands. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with SIDN through Gandi (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 23, 2017. On March 24, 2017, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On March 27, 2017, SIDN transmitted by email to the Center its verification response confirming that Private Registrant, c/o Gandi SAS is listed as the registrant and providing the contact details. On the same date, the Center sent a request for further verification to the Registrar in connection with the Domain Name registrant. On March 28, 2017, 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 Complainant on the same date 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 March 29, 2017.
A third party sent email communications to the Center on March 29, 2017 and March 30, 2017, suggesting familiarity with Respondent and offering to arrange the transfer of the Domain Name to Complainant. On March 31, 2017, the Center invited Complainant to consider submitting a request for suspension of the proceedings to explore possible settlement between the Parties by April 5, 2017. The Center did not receive any such request from Complainant.
The Center verified that the Complaint together with the Amended Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the "Regulations").
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 6, 2017. In accordance with the Regulations, article 7.1, the due date for Response was April 26, 2017. Respondent did not submit any response. Accordingly, the Center notified the Parties of such default and the Center's commencement of the Panel appointment process on May 1, 2017.
The Center appointed Dinant T.L. Oosterbaan as the panelist in this matter on May 15, 2017. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background
Complainant (also referred to as: Tinder) is in the business of providing online dating services since as early as 2012. It has an estimated 50 million users with sixty percent of Tinder users coming from outside North America. The website of Complainant "" is interactive allowing users to download mobile applications discovering potential dating candidates within a certain distance.
Complainant owns the European Union Trademark TINDER, with number 12278396, filing date November 5, 2013 and registration date March 31, 2014.
After it was first registered on November 22, 2013, Respondent acquired the Domain Name, , on March 12, 2015. The Domain Name resolves to a sex-related dating site. 5. Parties' Contentions A. Complainant
Complainant submits that the Domain Name is identical or at least confusingly similar to the TINDER trademark. According to Complainant, the Domain Name plainly incorporates the TINDER mark in its entirety. It is also clear from Respondent's web pages that the Domain Name is intended to relate directly to Tinder and the Tinder application. Respondent's addition of the word "online" to Complainant's protected TINDER trademark does nothing to differentiate the Domain Name from the TINDER trademark.
According to Complainant, Respondent has no rights to or legitimate interests in respect of the Domain Name. Respondent has never been authorized by Tinder to use any of the TINDER marks, nor any mark confusingly similar thereto, as a mark or as part of a domain name. This fact gives rise to a presumption that Respondent cannot establish that it has rights to or any legitimate interests in the Domain Name.
Complainant also submits Respondent has not used the Domain Name in connection with a bona fide offering of goods or services. Rather, Respondent has used the Domain Name to leverage Tinder's popularity and trade on Tinder's goodwill. Specifically, Respondent uses the Domain Name to lure consumers to a confusingly similar domain name and website. The landing page of the website to which the Domain Name resolves prominently displays a stylized TINDER mark together with pornographic photographs of purported users of the website to which the Domain Name resolves. A translated version of the landing page explains that "T is a contact site for men, women and couples seeking contact or exciting adventure." Creating an account on the website purports to be free, and, once logged in, users are able to contact other users by "sending (flirt) messages." Respondent is likely to continue deceitfully luring consumers to the adult-oriented website, evoking a negative association that is extremely harmful to the legitimate Tinder service. Consequently, Respondent cannot demonstrate that it has been using the Domain Name in connection with a bona fide offering of goods or services.
Complainant finally asserts that Respondent cannot demonstrate a legitimate noncommercial or fair use of the Domain Name. Instead Respondent registered and has used the Domain Name to mislead users and potential users of Complainant's Tinder dating services to suggest an affiliation with or endorsement by Complainant at Complainant's expense and for Respondent's profit. See Amanresorts Ltd., Amanresorts Int'l Pte Ltd v. Scott B. Myer,WIPO Case No. D2007-1354 (respondent did not have a legitimate purpose where "the only purpose of having registered the disputed domain name, was to divert traffic intended for the [c]omplainant's website to its own"). Further, Respondent's use of lewd imagery in connection with the TINDER mark on the website to which the Domain Name resolves evidences an intent to tarnish or otherwise damage the TINDER mark. Therefore, according to Complainant, it is clear that such a use of the Domain Name by Respondent does not constitute a legitimate, noncommercial or fair use, and Respondent cannot demonstrate any rights or legitimate interests in the Domain Name.
Complainant submits that Respondent has registered and is using the Domain Name in bad faith. Respondent's registration and use of the Domain Name has been with constructive notice of Complainant's exclusive right to use the TINDER mark. Specifically, Complainant has used its TINDER mark in connection with its dating services since at least as early as August 2, 2012, and Complainant's domain name was registered on June 22, 2012, well before Respondent registered the Domain Name. Respondent literally incorporates Complainant's entire TINDER trademark in the Domain Name, driving consumers to a website that misappropriates the protected TINDER mark, and thereby undermining Complainant's legitimate commercial interests. According to Complainant, Respondent deliberately attempts to attract users by creating confusion with Complainant's trademark as to the source, sponsorship, affiliation or endorsement of the Domain Name. Further, Complainant's customers and prospective customers are likely to be deceived into entering Respondent's website believing that they are dealing with Complainant or believing that the Domain Name is affiliated with or somehow endorsed by Complainant. Once at the website to which the Domain Name resolves, Complainant's prospective customers are met with pornography, and are left with a damaging association between the TINDER mark and the lewd content. Accordingly, Respondent's registration and continued use of the Domain Name was, and continues to be, in bad faith. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Based on article 2.1 of the Regulations, a claim to transfer a domain name must meet three cumulative conditions:
a. the domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law in which the complainant has rights, or other name mentioned in article 2.1(a) under II of the Regulations; and
b. the respondent has no rights to or legitimate interests in the domain name; and
c. the domain name has been registered or is being used in bad faith.
As Respondent has not filed a Response, the Panel shall rule on the basis of the Complaint. In accordance with article 10.3 of the Regulations, the Complaint shall in that event be granted, unless the Panel considers it to be without basis in law or in fact. A. Identical or Confusingly Similar
Pursuant to article 2.1(a) of the Regulations, Complainant must establish that the Domain Name is identical or confusingly similar to a trademark or trade name in which Complainant has rights.
Complainant has established that it has rights to the European Union trademark TINDER, which trademark is protected in the Netherlands. The Domain Name incorporates the entirety of the TINDER trademark. Many decisions under the Regulations have found that a domain name is confusingly similar to a complainant's trademark where the domain name incorporates the trademark in its entirety. The addition of the common, descriptive and non-distinctive element "online" only confirms this finding of confusing similarity. According to standard .nl jurisprudence, the country code Top-Level Domain ".nl" may be disregarded for purposes of article 2.1(a) of the Regulations.
The Panel finds that the Domain Name is confusingly similar to Complainant's TINDER trademark. B. Rights or Legitimate Interests
The Panel finds that Complainant has made a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name. Complainant has not licensed or otherwise permitted Respondent to use its trademark or to register the Domain Name incorporating its mark. Based on the record, the Panel finds that Respondent is not commonly known by the Domain Name nor has Respondent acquired trademark or other rights corresponding to the Domain Name.
Based on the evidence provided by Complainant, the Domain Name resolves to a pornographic dating website, including the stylized term "tinder", intended to profit from the TINDER mark. Such use cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name.
No Response to the Complaint was filed and Respondent has not rebutted Complainant's prima facie case.
Under these circumstances the Panel finds that Respondent has no rights to or legitimate interests in the Domain Name. C. Registered or Used in Bad Faith
The Panel finds that the Domain Name has been registered and is being used in bad faith.
The "Tinder" name was first used in commerce by Complainant in 2012, and the TINDER European Union trademark was registered on March 3, 2014. The Complainant's use of the "Tinder" name predates Respondent's acquisition of the Domain Name on March 12, 2015, and it even predates the first registration of the Domain Name in November 2012. Considering the distinctiveness of Complainant's trademark, the fact that by March 2015 Complainant's Tinder application was already downloaded by 50 million users, and noting the content provided on the website by Respondent, the Panel finds that Respondent knew or should have known of Complainant's rights.
The Panel finds that Respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trademark of Complainant as to the source, sponsorship, affiliation, or endorsement of such website, which constitutes bad faith pursuant to article 3.2(d) of the Regulations. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name, , be transferred to Complainant.
Dinant T. L. Oosterbaan
Panelist
Date: May 29, 2017
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