The Complainant is Tidal Music AS, United States of America (“United States”), represented by Pryor Cashman, LLP, United States.
The Respondent is Costin Moise, Romania.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 10, 2021. On November 10, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 11, 2021, 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 the Complainant on November 22, 2021 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 November 23, 2021.
The Center sent an email communication, in both English and Romanian, to the Parties on November 22, 2021, signaling that the Language of the Registration Agreement was Romanian. On November 22, 2021, the Complainant requested the Language of the Proceeding to be English. On November 24, 2021, the Respondent requested the Language of the Proceeding to be Romanian.
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 December 2, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 4, 2022. Informal communications were sent by the Respondent to the Center on November 24, 2021.
The Center appointed Marilena Comanescu as the sole panelist in this matter on January 11, 2022. 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 BackgroundThe Complainant is a global provider of Internet music, video and editorial content. The Complainant’s services are available in more than 60 countries, with more than 70 million song and 250,000 videos.
The Complaint holds trademark registrations for TIDAL such as the International Trademark Registration No. 1243529 registered on September 3, 2014, designating various jurisdictions worldwide including the European Union and claiming goods and services in classes 9, 35, 38, 41, 42 and 35.
The Complainant’s main website is available at “www.tidal.com”.
The disputed domain name
According to evidence provided in Exhibit A to the Complaint, following the Complainant’s cease-and-desist letters of September 3 and 9, 2021, the Respondent offered the disputed domain name for sale for the amount of USD 500; after receiving the offer approval of the Complainant’s representative the amount was increased to USD 1,666 and shortly afterwards to USD 2,500. Further, on November 23, 2021, the Respondent sent another email offer to the Complainant, for the amount of USD 1,700 (Exhibit D to Amended Complaint).
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain name is identical or confusingly similar to its distinctive trademark TIDAL, the Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent registered and is using the disputed domain name in bad faith. The Complainant requests the transfer of the disputed domain name to it.
B. RespondentThe Respondent did not formally reply to the Complainant’s contentions.
In one of the email communications transmitted in the course of the proceeding, on November 24, 2021, the Respondent claims that he aquired the disputed domain name for “a client whose company name was something with tidal in the name but after a while he went rogue on me, so I was left with the domain and nothing to do with it.”
6. Discussion and FindingsIn view of the absence of a formal Response, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel will further analyze the potential concurrence of the above circumstances.
6.1. Preliminary Matter: Language of the ProceedingThe Complaint was filed in English.
The language of the Registration Agreement is Romanian.
The Respondent requested Romanian to be the language of the proceeding in two separate email communications on November 24, 2021; the first one in Romanian, alleging that his command in English is at beginner level and the second one, in English, asserting inter alia that “I still prefer Romanian because it sounds cool. It’s my native language and I know English too.”
Under paragraph 11 of the Rules, the language of the proceeding is the language of the registration agreement of the disputed domain name, unless both parties agree otherwise, or the Panel determines otherwise based on one party’s request. A panel may decide that the proceeding should be conducted in another language than that the registration agreement when it is necessary due to the specific circumstances of the case, such as for example when the complainant does not understand the language of the registration agreement and it would therefore be unfairly disadvantaged by the fact that it must translate all the documents involved in such proceeding.
In the present proceeding, the Complainant does not understand Romanian and requested that English be the language of the proceeding. Also, the Respondent, having been notified of the present proceeding in both English and Romanian, submitted its majority communications in English although he requested that the language of the proceeding be Romanian.
The correspondence between parties before and during the proceeding were in English; the scarce content on the website under the disputed domain name is in English; the ealier version of the website under the disputed domain name had content in English.
The Panel is familiar with both languages and therefore is able to understand the submissions made by the parties in either of these two languages.
Noting the aim of conducting the proceeding with due expedition, paragraph 10 of the UDRP Rules vests the Panel with authority to conduct the proceeding in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.
The Panel considers that the Complainant will only be disadvantaged if required to translate the Complaint into Romanian and the proceeding will be unduly delayed. See section 4.5.1. of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
For all the above, the Panel decides that English is the language of the proceeding.
6.2. Substantive Matters: A. Identical or Confusingly SimilarThe Complainant holds rights in the TIDAL trademark.
The disputed domain name
Further, it is well established in decisions under the UDRP that the Top-Level Domain (“TLD”) (e.g., “.ro”, “.com”, “.org”) may typically be disregarded for the purposes of consideration of identity or confusing similarity between a trademark and a domain name.
Given the above, the Panel finds that the disputed domain name
The Complainant asserts that it has given no license or other right to use its trademark to the Respondent, that the Respondent is not commonly known by the disputed domain name, and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services.
Under the Policy, “a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP”. See section 2.1 of theWIPO Overview 3.0.
Further, there is no evidence before the Panel to suggest that the Respondent has made a bona fide use of the disputed domain name, or has been commonly known by the disputed domain name, or is making any legitimate noncommercial or fair use of the disputed domain name. In fact, at the time of filing the Complaint the disputed domain name resolved to a landing page stating “Just some…Tidal waves..”. The website did not contain any statement or clarification as to the website’s affiliation or lack thereof to the Complainant. Moreover, noting the earlier use of the disputed domain name to redirect to a website where similar services to those provided by the Complainant were promoted, the Panel finds the statement “Just some…Tidal waves..” on the landing page to be pretextual.
The Respondent has not substantially replied to the Complainant’s contentions to advance a claim to any rights or legitimate interests in the disputed domain name. The Respondent’s claim that he aquired the disputed domain name for “a client whose company name was something with tidal in the name” has not been supported by any evidence from the Respondent.
In fact, the Respondent registered the disputed domain name incorporating a third party’s trademark, without any authorization, has used it to redirect to a website where competing music streaming services were promoted, and currently keeps it inactive.
For all these reasons, the Panel finds that the second element of the Policy is established, and the Respondent has no rights or legitimate interests in respect of the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad FaithThe Complainant holds trademark rights for TIDAL since 2014. Due to its extensive use and marketing, the TIDAL trademark enjoys significant reputation in its field of activity.
The disputed domain name was created in 2020 and reproduces the Complainant’s mark in its entirety.
From the above, the Panel finds that the disputed domain name was registered in bad faith, knowing the Complainant and targeting its trademark.
At the time of filing the Complaint the disputed domain name was not actively used.
From the inception of the UDRP, panels have found that the non-use of a domain name (including a blank or “coming soon” or other similar inactive page) would not prevent a finding of bad faith under the doctrine of passive holding. The Panel must examine all the circumstances of the case to determine whether the Respondent is acting in bad faith. Examples of what may be relevant circumstances found to be indicative of bad faith include the degree of distinctiveness or reputation of the complainant’s mark and the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good faith use. See section 3.3 of the WIPO Overview 3.0. As previously mentioned, noting the earlier use of the disputed domain name to redirect to a website where similar services to those provided by the Complainant were promoted, the Panel finds the statement “Just some…Tidal waves..” on the landing page to be pretextual.
The Complainant’s trademark enjoys worldwide reputation and there is no plausible reason for the Respondent to choose and register such name other than to create confusion or association with the Complainant and its TIDAL mark.
According to one email communication regarding the language of the proceedings, the Respondent claimed he acquired the disputed domain name for a client “whose company name was something with tidal in the name”. However, no evidence has been submitted by the Respondent to support this claim.
According to Complainant’s allegations, uncontested by the Respondent, before commencing the present proceeding, the Respondent has used the disputed domain name to redirect Internet users to a third party website where similar services to those provided by the Complainant were promoted.
Paragraph 4(b)(iv) of the Policy provides that the use of a domain name to intentionally attempt “to attract, for commercial gain, Internet users to [the respondent’s] 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” is evidence of registration and use in bad faith.
Given that the disputed domain name incorporates the Complainant’s trademark and the website operated under the disputed domain name provided similar services to those offered by the Complainant, in this Panel’s view, the Respondent intended to attract Internet users accessing the website corresponding to the disputed domain name who may be confused and believe that the website is held, controlled by, or somehow affiliated or related to the Complainant, for his commercial gain. This activity also disrupts the Complainant’s business.
Further, according to the case file, particularly the evidence provided as Exhibit A to Complaint, the Respondent has offered to sell the disputed domain name for various amounts (varying from USD 500 to USD 2,500), thus the disputed domain name appears to have been registered for the main purpose of selling it to the Complainant or its competitors for an amount likely in excess of the documented out-of-pockets costs.
Therefore, the Panel deems applicable the paragraph 4(b)(i) of the Policy in the present case because there are circumstances indicating that the Respondent has registered the disputed domain name primarily for the purpose of selling or otherwise transferring the domain name registration to the Complainant.
Furthermore, it has been consistently found by previous UDRP panels that the mere registration of a domain name that is identical or confusingly similar to a third party’s well-known trademark can by itself create a presumption of bad faith. See section 3.1.4 of the WIPO Overview 3.0.
For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
7. DecisionFor 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
Marilena Comanescu
Sole Panelist
Date: January 19, 2022