WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cougar Life Inc. v. Moniker Online Services, LLC
Case No. D2012-2512
1. The Parties
The Complainant is Cougar Life Inc. of Toronto, Ontario, Canada, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
The Respondent is Moniker Online Services, LLC of Portland, Oregon, United States of America.
2. The Domain Name and Registrar
The disputed domain name <cougarlie.com> is registered with Masterofmydomains.net LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 20, 2012. On December 21, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 3, 2013, 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. In response to an email communication by the Center that the Registrar’s principal office was not correctly reflected in the Complaint, the Complainant filed an amended Complaint on January 4, 2013.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 9, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was January 29, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 31, 2013.
The Center appointed Torsten Bettinger as the sole panelist in this matter on February 8, 2013. 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 the owner and operator of a successful online dating service, which pairs younger men with older women (commonly known as “cougars”) and facilitates dating experiences. The Complainant’s company received a large amount of media attention in 2012 due to an extensive online and television marketing campaign. Numerous third party merchants and news agencies have remarked on the ads, providing the company with additional media coverage.
The Complainant’s service was launched in 2009, and its COUGAR LIFE word mark is registered in both Canada (as of August 2010) and the United States (as of March 2011). The Complainant provides its services on websites located at both <cougarlife.com> and <cougarlife.co.uk>.
The Respondent is a domain name registrar, who is utilizing the disputed domain name in connection with a pay-per-click (PPC) revenue scheme. According to the evidence submitted with the Complaint, the disputed domain name has previously been used to display a number of links related to “May-December” dating services, as well as dating services more generally. At present, the links appear to have been modified, and relate to wildlife and hunting content. The disputed domain name was registered on July 13, 2012.
5. Parties’ Contentions
The Complainant asserts that each of the elements specified in paragraph 4(a) of the Policy has been satisfied.
With regard to the first element of the Policy, the Complainant states that the disputed domain name is confusingly similar to its COUGAR LIFE mark because the disputed domain name is composed of the trademark with the omission of a single letter. The Complainant argues that the lack of a letter “f” does not prevent a finding of confusing similarly between the disputed domain name and the mark, and further submitted evidence to show that when “Cougar Lie” is entered into the Google Search browser, the search function automatically “corrects” the search term to “Cougar Life,” showing results related to the Complainant’s business activities.
Concerning the second element of the Policy, the Complainant confirms that it is in no way affiliated with the Respondent, and has not licensed or permitted the Respondent to use its trademark in any fashion. The Complainant notes that the Respondent’s only use of the disputed domain name has been to display PPC links, and that previously those links connected Internet visitors to the websites of the Complainant’s competitors. Further, the Complainant asserts that the Respondent is not commonly known by the disputed domain name and, despite having searched the trademark registers of the United States and the Madrid system, the Complainant has been unable to locate any records of a trademark for “cougar lie” registered by the Respondent.
With regard to the final element of the Policy, the Complainant notes that its COUGAR LIFE trademark was registered in the United States (where the Respondent is located) well prior to the Respondent’s selection of the disputed domain name, and further that its online service was both active and heavily advertised for roughly three and a half years prior to the Respondent’s registration. Moreover, the Complainant argues that in addition to actual notice, the Respondent was provided with constructive notice of its mark due to its prior trademark registration in the United States. The Complainant further alleges that the Respondent’s use of the disputed domain name to earn PPC revenue is indicative of bad faith registration and use under paragraph 4(b)(iv) of the Policy.
The Respondent did not reply to the Complainant’s contentions.
It is perhaps worth noting that the Registrar for the disputed domain name, Masterofmydomains.net LLC, appears to be owned and/or operated by the Respondent, who is itself a domain name registrar. The two entities share a physical address, and the Registrar’s WhoIs reference provided on “www.internic.net” redirects to the Respondent’s own WhoIs service. Questions concerning the appropriateness of registrars registering and owning portfolios of domain names for their own financial gain have been hotly debated in recent years, although the current (2009) Registrar Accreditation Agreement does not expressly prohibit this conduct.
6. Discussion and Findings
A. Identical or Confusingly Similar
The test for identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone. Where, as here, the disputed domain name consists of the entirety of the Complainant’s registered trademark with only a minor spelling difference, intending to capitalize on the innocent misspelling of the Complainant’s mark by Internet users (a practice known as typosquatting), confusing similarity is generally established. In this instance, the Panel finds that the removal of the letter “f” from the Complainant’s COUGAR LIFE trademark does not diminish the overall similarity of the domain name string and the trademark. See BookIt.com Inc. v. Whois Privacy Services Pty Ltd., Douglas Baxster, WIPO Case No. D2011-1450; FatWaIlet, Inc. v. Fundacion Private Whois, WIPO Case No. D2012-1066; and Interval International, Inc. v. PrivacyProtect.org/Purple Bucquet, WIPO Case No. D2010-2113.
Accordingly, the Panel thus finds that the disputed domain name is confusingly similar to the Complainant’s COUGAR LIFE mark and that the Complainant has established the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain name. It is the consensus view among UDRP panelists, however, that if a complainant makes a prima facie case that the respondent has no rights or legitimate interests, and the respondent fails to show one of the three circumstances under paragraph 4(c) of the Policy, then the respondent may lack rights or legitimate interests in the domain name. See Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
In this case, the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The Complainant has confirmed that it has not licensed or authorized the Respondent to use its COUGAR LIFE mark in any fashion and that there is no connection between the parties. There is no evidence on the present record, on the website active at the disputed domain name, or in the publicly-available WhoIs records to indicate that the Respondent is commonly known by the disputed domain name or a name corresponding to the disputed domain name.
As the Complainant notes, the use of a domain name to offer PPC links is not per se evidence of a respondent’s lack of rights or legitimate interests, particularly where the links are logically related to any dictionary meaning of the textual string. In this case, the disputed domain name is indeed composed of two dictionary words, namely “cougar” and “lie”. However, the use of the disputed domain name to display sponsored links for dating sites and therefore does not correspond to the dictionary meaning of the composite terms. Moreover, the Panel is hard pressed to conceive of any logical use of the disputed domain name which would be in line with its common meaning.
The use of the disputed domain name in connection with dating-related links makes clear the Respondent’s intention to target not the dictionary value of the disputed domain name but, indeed, the Complainant’s trademark value and thus to capitalize on the risk of Internet user confusion. The use of another’s mark to derive advertising revenue on the basis of consumer confusion is not consistent with a bona fide use for the purposes of the Policy. See Donald J. Trump v. Mediaking LLC d/b/a Mediaking Corporation and Aaftek Domain Corp., WIPO Case No. D2010-1404.
The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name and that the requirement of paragraph 4(a)(ii) is also satisfied.
C. Registered and Used in Bad Faith
The Complainant provided evidence of its trademark registrations for the COUGAR LIFE mark, which has enjoyed protection since at least 2010. The disputed domain name was registered roughly two years after the Complainant’s mark, and three years after the Complainant began using the mark in connection with its online dating services. That the Respondent has used the disputed domain name in connection with a PPC site providing links to competitive dating services demonstrates that the Respondent must have been aware of the Complainant’s mark and activities at the time it selected the disputed domain name. Thus, the disputed domain name was registered in bad faith.
By incorporating the COUGAR LIFE mark in the disputed domain name and using the disputed domain name in connection with a PPC monetization mechanism, the Respondent was, in all likelihood, trying to divert Internet traffic intended for the Complainant’s websites to its own for commercial gain by creating a likelihood of confusion with the Complainant’s mark. Such use constitutes evidence of bad faith under paragraph 4(b)(iv) of the Policy. See F. Hoffmann-La Roche AG v. DOMIBOT, WIPO Case No. D2006-0327.
The Panel therefore concludes that the requirement of paragraph 4(a)(iii) of the Policy has also been met.
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 <cougarlie.com> be transferred to the Complainant.
Date: February 21, 2013