WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
QSoft Consulting Limited v. Robertson
Case No. D2011-0292
1. The Parties
The Complainant is QSoft Consulting Limited of Twickenham, Middlesex, United Kingdom of Great Britain and Northern Ireland, represented by Alexander Ramage Associates LLP, United Kingdom.
The Respondent is Joseph Robertson of Watford, Hertfordshire, United Kingdom.
2. The Domain Names and Registrar
The disputed domain name is <gaydarshoping.com>. It is registered with Ascio Technologies, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February, 11, 2011. On February 14, 2011, the Center transmitted by email to Ascio Technologies Inc. a request for registrar verification in connection with the disputed domain name. On February 17, 2011, Ascio Technologies, Inc. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 18, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was March 10, 2011. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on March 11, 2011.
The Center appointed Clive Duncan Thorne as the sole panelist in this matter on March 15, 2011. 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 evidence from the Complainant is that it owns a portfolio of trade marks incorporating the mark GAYDAR which have been registered for, inter alia, its on-line dating agency services. These include the following:
(i) Community Trade Mark No. 2127264 – GAYDAR in classes 35, 38 and 42;
(ii) Community Trade Mark No. 3804168 – GAYDAR (word) in classes 38 and 41;
(iii) Community Trade Mark No. 3886256 – GAYDAR and device in classes 35, 38, 41 and 45;
(iv) Community Trade Mark No. 3886264 – GAYDAR WHAT YOU WANT, WHEN YOU WANT IT in classes 35, 38, 41 and 45;
(v) Community Trade Mark No. 2564458 – GAYDAR.CO.UK WHAT YOU WANT, WHEN YOU WANT IT in classes 35, 38 and 42;
(vi) Community Trade Mark No. 6441927 – GAYDARGIRLS in classes 9, 35, 38, 41, 42 and 45;
(vii) Community Trade Mark No. 6441919 – GAYDARNATION in classes 9, 35, 36, 38, 39, 41 and 45;
(viii) United Kingdom Trade Mark No. 2430466B - GAYDAR DAYS in class 41;
(xi) United Kingdom Trade Mark No. 2456031 – GAYDAR SEX FACTOR (logo) in classes 35, 38, 41 and 45;
(x) United Kingdom Trade Mark No. 2430466A – GAYDARDAYS in class 41.
In addition to being the registered trade mark of the above Community and United Kingdom trade marks, the Complainant indicates it is the registered proprietor of trade marks GAYDAR in Australia, Japan and Norway. Evidence of the registrations are set out at Annex E to the Complaint.
According to the Complainant, it has established a substantial and protectable goodwill and reputation in respect of dating websites operating under the names Gaydar and Gaydargirls and in respect of a social networking site operating under the name Gaydarnation and in an Internet radio station operating under the name Gaydarradio.
A screen print of the Gaydar dating website which can be accessed from more than 50 domain names, including <gaydar.eu> and <gaydar.co.uk>, is annexed to the Complaint at Annex F.
A screen print of the Gaydargirls website which can be accessed through <gaydargirls.com> is also annexed to the Complaint as Annex G.
Screen prints of the Gaydarnation website accessed through <www.gaydarnation.com> and of the Gaydarradio website accessed through <www.gaydarradio.com> are annexed to the Complaint as Annex H.
The Complainant has also registered a large number of domain names incorporating the mark GAYDAR. These are listed at Annex I to the Complaint.
The dispute appears to have begun when a demand letter was sent to the Respondent by the Complainant’s representatives, Alexander Ramage Associates LLP, on November 12, 2010. A copy of the letter is annexed at Annex K to the Complaint. The letter refers to the registration of the disputed domain name and points out that it referred to a website bearing a legend “WELCOME TO GAYDARSHOPING.COM” and contained advertisements for various products and advertising links to on-line sales outlets. Screen prints of the website are attached to the letter. There appears to have been no response to the letter and the dispute proceeded to the current Complaint.
In the absence of any evidence to the contrary filed by the Respondent, the Panel accepts that the Complainant is the owner of the above trade mark rights.
5. Parties’ Contentions
1. The Complainant asserts that it has trade mark rights in the mark GAYDAR and that the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights within paragraph 4(a)(i) of the Policy.
2. The Respondent has no right or legitimate interest in respect of the disputed domain name.
3. The disputed domain name has been registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
For the reasons set out above, the Panel is satisfied that the Complainant has (pre-existing) trade mark rights incorporating the mark GAYDAR.
The Complainant also submits that the disputed domain name is similar to the trade mark GAYDAR. In particular, it submits that the domain name <gaydarshoping.com> consists of the Complainant’s registered trade mark GAYDAR conjoined with the misspelling of the descriptive word “shopping” and the gltd “com”. It submits that the dominant feature of the disputed domain name is the registered trade mark GAYDAR. The fact that the descriptive word “shopping” has been misspelt as “shoping” does nothing to distinguish the disputed domain name from the Complainant’s registered trade mark.
It also draws attention to the fact that the Complainant has an established reputation in using marks, domain names and expressions in which the mark GAYDAR is linked to another word, as for example, in GAYDARGIRLS, GAYDARNATION and GAYDARRADIO. Having reviewed the evidence and taking into account that there is no Response filed by the Respondent, the Panel finds that the disputed domain name is confusingly similar to a trade mark or service mark in which the Complainant has rights.
The Complainant therefore succeeds with regard to this element.
B. Rights or Legitimate Interests
In support of the submission, the Complainant submits that there is no evidence that the Complainant has licensed or otherwise permitted the Respondent to use any of its trade marks.
The Complainant also deals with the argument that GAYDAR has a relevant meaning (namely the supposed intuitive ability to assess someone’s sexual orientation). However, this does not describe any of the services or the goods covered by the Complainant’s registered marks nor does it describe any of the services offered by the Respondent by reference to the disputed domain name. It submits that for so long as the Complainant’s trade marks are valid and registered (and there is no evidence that they are not) they provide the Complainant with exclusive protection in respect of the services offered. The disputed domain name is being used in respect of services covered by the Community Trade Mark GAYDAR, i.e. advertising services provided by means of the Internet, and is not being used to indicate any characteristic of which “gaydar” may be perceived as a description.
In the absence of submissions to the contrary from the Respondent, the Panel accepts the Complainant’s submissions and finds that the Respondent has no rights or legitimate interest in respect of the disputed domain name.
C. Registered and Used in Bad Faith
The disputed domain name pointed to a website bearing the legend “WELCOME TO GAYDARSHOPING.COM” and containing advertisements for various products and advertising links to on-line sales outlets.
In the Panel’s view, it is clear that the Respondent at the moment the Complaint was submitted was the offeror in advertising, marketing or promotional services on the Internet under or by reference to the domain name <gaydarshoping.com>. The services in question are protected by the Complainant’s trade mark rights and there is therefore a likelihood of confusion. The Complainant submits that the website users would likely consider that there was a connection between the services offered on the website to which the disputed domain name points and the Complainant. If so, it is clear that the disputed domain name was being used in a manner that is intended to take unfair advantage of the reputation and goodwill enjoyed by the Complainant in the mark GAYDAR and associated marks.
For these reasons, the disputed domain name at the moment of submission of the Complaint was being used to attract, for commercial gain, Internet users to a website to which the disputed domain name points by creating a likelihood of confusion with the Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of the website. Alternatively, a logical consequence for the Panel of the use of the disputed domain name is the likely or possible disruption of business of the Complainant.
In the absence of a Response, the Panel accepts these submissions and finds that the disputed domain name was registered and was being used in bad faith.
Accordingly, the Complainant succeeds in proving this element. It also follows that the Complainant has succeeded in proving its Complaint.
For all 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 <gaydarshoping.com> be transferred to the Complainant.
Clive Duncan Thorne
Dated: March 31, 2011