WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Together Networks Holdings Limited v. Admin Admin / MyPengo Mobile B.V.
Case No. D2016-1350
1. The Parties
Complainant is Together Networks Holdings Limited of Tortola, British Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Edison Legal Ltd, United Kingdom.
Respondent is Admin Admin of Amsterdam, the Netherlands / MyPengo Mobile B.V. of Almere, the Netherlands, represented by Greenberg Traurig, LLP, The Netherlands.
2. The Domain Name and Registrar
The disputed domain name <cheekydevil.com> (the “Domain Name”) is registered with Gandi SAS (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 1, 2016. On July 1, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 4, 2016, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. Complainant filed an amendment to the Complaint on July 8, 2016, to correct an administrative formality.
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 Respondent of the Complaint, and the proceedings commenced on July 12, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 1, 2016. The Response was filed with the Center on July 29, 2016. Complainant filed an unsolicited supplemental filing on August 1, 2016. Respondent filed an unsolicited supplemental filing in reply on August 2, 2016.
The Center appointed Christopher S. Gibson as the sole panelist in this matter on August 8, 2016. 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.
On August 8, 2016, the Center received a communication from Complainant claiming that the law firm representing Respondent in this case represents Complainant in connection with a trademark registration matter in the United States of America (“United States”). Complainant requests that, because this behavior might constitute a conflict of interest on the part of Respondent’s counsel, the law firm representing Respondent should be disqualified, without prejudice to the exercise of any rights conferred by law including the possibility of filing complaint at the relevant bar association.
On August 11, 2016, Complainant notified the replacement of its legal representative for the case, substituting in its new counsel, Edison Legal Ltd of the United Kingdom.
On August 11, 2016, the Panel directed that the Center send Procedural Order No. 1 to the Parties, which provided, among other things, that Respondent comment on the issue of alleged conflict of interest and the relevance of the issue to this case.
On August 15, 2016, counsel for Respondent provided the following response to Procedural Order No. 1:
“The Complainant’s counsel states that Greenberg Traurig LLP also represents Together Networks Holding Limited (TNHL) [Complainant] as the attorney of record for the US trademark BeNaughty. The Complainant did not present any legitimate arguments that such representation, or any other representation by Greenberg Traurig as TNHL’s attorney, meets the criteria of a conflict of interest under any applicable rules of professional conduct. The present proceedings are not in any way related to the above-mentioned US trademark matter. Furthermore, there is no confidential information of TNHL of any kind available to me that would be of any significance in the present proceedings and the Complainant’s counsel did not make any argument to that effect. The mere fact that another attorney of Greenberg Traurig in the US is also representing TNHL in different matters does not qualify as a conflict of interest. I therefore conclude that there is no conflict of interest on my part as the Respondent’s counsel.”
4. Decision on Supplemental Filings and Alleged Conflict of Interest
The Panel notes that, as the Center has already indicated in a communication to the Parties, the Rules provide for the submission of the Complaint by Complainant and the Response by Respondent. No express provision is made for supplemental filings by either Party, except in response to a deficiency notification or if requested by the Center or the Panel. Paragraphs 10 and 12 of the Rules in effect grant the Panel sole discretion to determine the admissibility of supplemental filings. The Panel has considered whether to admit the Parties’ supplemental filings and finds there are no exceptional circumstances, such as new and unanticipated evidence, to justify them. Each of the Parties’ supplemental filings will not be admitted in this case.
With regard to Complainant’s request to disqualify counsel for Respondent, the Panel denies this request, without prejudice to Complainant’s exercise of any rights conferred by law including the possibility of filing a complaint with the relevant bar association. The Panel notes that Complainant has not provided sufficient information and made reference to relevant professional conduct rules to establish that the representation of Respondent by Respondent’s law firm in this case meets the criteria of a conflict of interest under any applicable rules of professional conduct. The Panel considers that this case is unrelated to the prior trademark matter in the United States (apparently taking place in 2009 and 2010), in which another member of the law firm representing Respondent is the attorney of record for Complainant. Respondent’s counsel here has also stated that in regards to the previous matter in the United States, “there is no confidential information of [Complainant] of any kind available to me that would be of any significance in the present proceedings”. Based on the information before the Panel and the issues in dispute in the present case, the Panel considers that there is no potential adverse impact to Complainant in this case resulting from that previous representation of Complainant in an unrelated matter in the United States by a another member of Respondent’s law firm.
5. Factual Background
Complainant is an online dating business and operates a number of websites, including one linked to the domain name, <cheekylovers.com>, which was registered on June 13, 2011. Complainant filed an application on November 10, 2015 for CHEEKYLOVERS as a trademark in the European Union. The mark was registered on February 23, 2016 (European Union Trade Mark (“EUTM”) No. 014775282).
Respondent operates a dating website linked to the Domain Name. The Domain Name was registered on June 26, 2008. Respondent has stated it commenced using the Domain Name in the online dating industry in 2014.
6. Parties’ Contentions
(i) Identical or confusingly similar
Complainant states that it is a major actor in the dating business operating a number of related websites. Among these, the website linked to the domain name <cheekylovers.com> has been used to provide dating services for over five years and is used worldwide, including in Spain and the United Kingdom. The site receives about 14,471 unique visitors and 67,436 page views per day, and ranks number 35,452 in the world for this activity. The <cheekylovers.com> domain name was registered in June 2011, but Complainant states that its CHEEKYLOVERS brand has been used in commerce since 2003. Complainant states that it has acquired unregistered rights in the CHEEKYLOVERS mark through its use in commerce since 2003. Complainant has provided pictures of the website linked to its “www.cheekylovers.com” website from November 2011, September 2012, November 2013 and July 2014 to show use over the last five years. Complainant claims that from the evidence submitted, its CHEEKYLOVERS trademark is well-known worldwide in relation to dating services and that the design of a heart with two little horns and a tail is largely known by users of Internet dating services. Complainant states that the Policy refers merely to a “trademark or service mark” in which the complainant has rights and does not expressly limit the application of the Policy to a registered mark.
Complainant asserts that Respondent’s Domain Name is also used for online dating services and is confusingly similar to Complainant’s CHEEKYLOVERS mark because it takes the dominant element of this trademark, the term “cheeky”, while the word “lovers” is weak and devoid of distinctive character with respect to dating services since it is descriptive.
Complainant states that it also offers dating services under other trademarks that are characterized by the fanciful graphic of a heart design with two little horns and a tail (like a “devil”). Complainant registered EUTMs in 2010 and 2011 (EUTM Nos. 008560971, 010175073 and 010175578) using this graphic design, and Complainant has submitted evidence of the use of this design logo in different countries (Denmark, France, Spain and the United Kingdom). Complainant states that the webpage linked to the Domain Name copies the design of the heart with two little horns and a tail that characterizes Complainant’s dating services. This design has been used in commerce to provide dating services long before the Domain Name was registered.
In view of these circumstances, Complainant contends that Respondent seems to have been inspired by Complainant’s trademarks and copied the dominant element of the CHEEKYLOVERS mark and the design of Complainant’s other EUTMs. This mixture leads consumers to confusion and makes them believe mistakenly that the dating services provided by the website linked to the Domain Name are provided by Complainant.
(ii) Rights or legitimate interests
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) Respondent is not a licensee or affiliate of Complainant, nor has Respondent received any permission or consent to use Complainant’s trademark; (ii) Complainant has prior rights in its trademark which predate Respondent’s registration of the Domain Name; and (iii) Respondent is not commonly known by the trademark. The record indicates that Respondent is known as “Linking Lovers Ltd”, a company which was incorporated on October 30, 2015. Complainant states that from the available record, Respondent does not appear to hold any trademarks for the Domain Name. In view of these facts, Complainant asserts that Respondent’s use of the Domain Name seems calculated to falsely suggest to Internet users that Complainant is affiliated with Respondent’s website.
Complainant notes that paragraph 4(c) of the Policy provides that a respondent may demonstrate rights or legitimate interests in a domain name by establishing that prior to the dispute, it used (or made demonstrable preparations to use) a domain name in connection with a bona fide offering of goods or services. However, Complainant states that the use of the Domain Name, which is confusingly similar to Complainant’s trademarks, with an intention of deriving advantage from user confusion and diverting Internet users to other commercial sites does not confer rights or legitimate interests on Respondent, but instead clearly infringes Complainant’s trademarks in the relevant classes of services. Respondent has attempted to use the Domain Name for commercial gain at the expense of Complainant’s business, by creating a likelihood of confusion with Complainant’s CHEEKYLOVERS mark and with the design logo represented by Complainant’s European Union trade marks (EUTM Nos. 008560971, 010175073 and 010175578), thereby diverting consumers to its own website.
Complainant’ contends that the evidence in the record supports the position that Respondent acquired the Domain Name in the hope of intentionally attracting, for commercial gain, Internet users to Respondent’s website by creating this likelihood of confusion with Complainant and its CHEEKYLOVERS mark. Such conduct has been repeatedly found not to constitute a bona fide offering of goods or services for the purposes of the Policy where Respondent trades on, or appears to trade on, the trademark significance of Complainant’s trademark.
(iii) Registered and used in bad faith
Complainant contends that the intent of the Policy is to provide a fair and efficient mechanism for trademark owners to obtain redress in situations where their trademark rights are abused as a result of bad faith activities of domain name registrants, and that there is no reason why the availability of redress should be confined to situations where bad faith is present at the time of acquisition of a domain name. To limit the trademark owner’s redress in this way would mean that even the most damaging abuse of a trademark right through the egregious bad faith use of a domain name would be immune from remedy under the Policy, so long as the registrant was not acting in bad faith when the domain name was acquired. Thus, according to Complainant, the Policy expressly recognizes that, where the disputed domain name is identical or confusingly similar to a complainant’s trademark and the respondent has no rights or legitimate interests in the domain name, in certain circumstances bad faith use of a domain name alone is sufficient to entitle the complainant to a remedy.
Complainant states that the Domain Name was initially created on June 26, 2008; however, the webpage linked to the Domain Name is operated by a company that was incorporated on October 30, 2015. Therefore, the Domain Name has been used for dating services for much less time than Complainant’s trademarks have been used. Complainant alleges that it is unlikely that Respondent was unaware of Complainant’s trademarks and its activity in the field of online dating services, especially if we take into account the broad use of Complainant’s webpages in this field.
Complainant submits that Respondent is using the Domain Name, which is confusingly similar to Complainant’s trademarks, in bad faith. The Domain Name resolves to a webpage that has the appearance of being a webpage belonging to Complainant, to support the initial confusion that the Domain Name belongs to Complainant’s and relates to Complainant’s services. Using the Domain Name that is confusingly similar to Complainant’s trademarks for a competing website means that Respondent is using it to create confusion among Internet users to attract visitors to Respondent’s website for commercial gain.
Further, Complainant alleges that Respondent is using the Domain Name and its webpage for the purpose of acquiring confidential personal information provided by Internet users mistakenly believing that they are providing such confidential information to Complainant for one of its online chat or dating services. Complainant refers to previous UDRP decisions involving the fraudulent use of deceptive websites, where the panels observed that respondents’ sites adopted the same basic design and trade dress as the complainants’ sites, and found that Internet users might access the respondents’ websites and transmit, without knowing it, usernames and passwords to unauthorized third parties.
Complainant’s also argues that Respondent’s use of a privacy service to hide Respondent’s data should be viewed as illegitimate in this case. Although privacy shields might be legitimate in some cases, it is difficult to see why Respondent needs to protect its identity except to frustrate the purposes of the Policy. Further, in circumstances like this, the privacy shield may allow registrants to transfer domain name registrations amongst themselves without any public record that there has been a transfer, thus allowing them to evade enforcement of legitimate third-party rights or to obstruct proceedings commenced under the Policy. Such use contradicts the Policy’s overriding objectives to preserve accountability for unlawful acts on the Internet and to curb the abusive registration of domain names and cybersquatting.
Complainant also states that it sent to Respondent a cease-and-desist letter on June 17, 2016, and no response was received.
Respondent states that it has been using the Domain Name as an adult dating website since 2014, and that it is well known for its Internet dating services and has over 440,000 members. Respondent further states that it is ranked as a top 10 dating site, and in June 2016, the Domain Name was visited more than 412,000 times. Based on these facts, Respondent argues that the Domain Name is well known by the relevant public, in particular, the public that uses Internet dating sites.
Respondent states that on January 26, 2016, Complainant filed EUTM No. 015039589 for the mark CHEEKYDEVIL, which was registered on May 10, 2016. Complainant registered this mark more than a year after Respondent started using the Domain Name for an Internet dating website. Respondent emphasizes that Complainant has never used the “CheekyDevil” sign, either prior to registering it as a trademark or afterwards. Due to the fact that Respondent’s Domain Name is well known for the services it provides in the online dating industry, Respondent argues that Complainant was aware of the existence of the Domain Name prior to registering CHEEKYDEVIL as a mark. Because Complainant and Respondent are in the same industry and Complainant has never used the CheekyDevil sign, Respondent argues that Complainant registered the CHEEKYDEVIL mark for the sole purpose of preventing Respondent from using the Domain Name. In response, on July 22, 2016, Respondent filed a request with the European Union Intellectual Property Office (“EUIPO”) to declare Complainant’s CHEEKYDEVIL mark invalid on grounds of bad faith.
Respondent also states that while Complainant claims no response to Complainant’s cease-and-desist letter of June 17, 2016 was received, this is false. Respondent provides evidence to show that Complainant contacted Respondent on two separate occasions, May 30, 2016, and June 23, 2016, and that Respondent replied to both these letters on June 22, 2016 and June 29, 2016.
(i) Identical or confusingly similar
Respondent refers to legal test for determining confusing similarity under the Policy, involving a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion: the application of the confusing similarity test typically involves a straightforward visual or aural comparison of the trademark with the alphanumeric string in the domain name. Based on this test, Respondent submits that the Domain Name shares no visual or aural similarities to Complainant’s CHEEKYLOVERS mark and the domain name <cheekylovers.com>. Respondent asserts that the dominant elements of Complainant’s mark and the Domain Name are the terms “lovers” and “devil”, respectively. The term “cheeky” is a descriptive adjective that relies on the dominant element to have meaning, and therefore cannot stand alone. Consequently, the Panel should take into consideration the difference between the dominant elements “lovers” and “devil”, which are terms that share no visual or aural similarities, and are completely distinct in meaning.
Respondent also contends that Complainant’s reference to the graphic representations of its EUTMs should play no role in determining whether the Domain Name is identical or confusingly similar to a trademark under the Policy.
Based on the foregoing, Respondent contends that the Domain Name is not identical or confusingly similar to Complainant’s CHEEKYLOVERS mark and domain name <cheekylovers.com>.
(ii) Rights or legitimate interests
Respondent submits that it has been using the Domain Name to offer bona fide services in the online dating industry and has been active on this market since 2014. Based on its popularity, Respondent claims it is commonly known by its Domain Name within the online dating industry. The homepage of the website linked to the Domain Name makes clear that the website is owned and operated by Linking Lovers Ltd and that there is no affiliation with any of the competing online dating websites owned by Complainant. Consequently, Respondent urges that it is making a legitimate commercial use of the Domain Name, thus demonstrating that Respondent has rights and legitimate interests in it.
With regard to Complainant’s allegation that Linking Lovers Ltd was incorporated on October 30, 2015, and that this allegedly proves that Respondent’s use of the Domain Name is calculated to falsely suggest to Internet users that Complainant is affiliated with Respondent’s website, Respondent emphasizes that the fact that Linking Lovers Ltd was incorporated on October 30, 2015 does not change the fact that the Domain Name has been legitimately used since 2014, nor does this have anything to do with the allegations made by Complainant. Consequently, Respondent asks the Panel to disregard this claim in determining the legitimate use of the Domain Name.
(iii) Registered and used in bad faith
In response to Complainant’s claim that Respondent is using the Domain Name to intentionally attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark, Respondent states that Complainant and Respondent are two distinct operators in the online dating industry. Respondent states that it has in no way acted in a manner that would confuse the relevant public into assuming an association between the Domain Name and Complainant. Furthermore, there is no potential for confusion between the two operators and their domain names. On the homepage linked to the Domain Name it is made clear that the website is owned and operated by Linking Lovers Ltd. The Domain Name and its content do not in any way suggest any relation between Complainant and Respondent.
Respondent also asserts that Complainant has provided no evidence to substantiate any allegations of fraudulent use of the Domain Name (i.e., phishing) by Respondent. Respondent submits that it is a legitimate operator in the online dating industry.
Respondent also states that Complainant registered its CHEEKYDEVIL mark (EUTM No. 015039589) two years after Respondent started using the Domain Name for its online dating services. Respondent asserts that this trademark was registered in bad faith. In addition, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 3.1, states that there is a general consensus that when a disputed domain name is registered prior to the use of a registered (or unregistered) trademark, the registration of the domain name is not in bad faith because the registrant could not have contemplated the complainant’s then non-existent right. Consequently, considering the fact that Complainants application for its CHEEKYDEVIL mark was filed on January 26, 2016 and the Domain Name has been registered since 2008 and has been used for online dating services since 2014, Respondent could not have contemplated Complainant’s non-existent rights.
In conclusion, Respondent contends that it has refuted all accusations made by Complainant and the Complaint should be dismissed.
7. Discussion and Findings
To succeed in its claim, Complainant must demonstrate that the three elements enumerated in paragraph 4(a) of the Policy have been satisfied. These elements are that:
(i) the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights to or legitimate interests in respect of the Domain Name; and
(iii) Respondent has registered and is using the Domain Name in bad faith.
A. Identical or Confusingly Similar
The Panel must determine whether the Domain Name is identical or confusingly similar to a trademark in which Complainant has rights.
Complainant has demonstrated that it has registered rights in its CHEEKYLOVERS trademark, which was applied for on November 10, 2015, and registered on February 23, 2016 as EUTM No. 014775282. Complainant’s ownership of its registered CHEEKYLOVERS mark satisfies the threshold requirement of having trademark rights for purposes of this first element under paragraph 4(a) of the Policy. See WIPO Overview 2.0, paragraphs 1.1 (“If the complainant owns a trademark, then it generally satisfies the threshold requirement of having trademark rights”) and 1.4 (“Registration of a domain name before a complainant acquires trademark rights in a name does not prevent a finding of identity or confusing similarity under the UDRP”). The Panel also observes that Complainant has not based its Complaint in this case on its CHEEKYDEVILS mark, which was applied for on January 26, 2016, and registered on May 10, 2016 as EUTM No. 015039589.
For purposes of determining whether the Domain Name is confusingly similar to Complainant’s CHEEKYLOVERS mark, the test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark. The issue in the analysis of the first factor is whether the alphanumeric string comprising the disputed domain name is identical to Complainant’s mark or sufficiently approximates it, visually, phonetically, in meaning or overall impression, so that the disputed domain name on its face is “confusingly similar” to Complainant’s mark. See Advance Magazine Publishers Inc. d/b/a Condé Nast Publications v. MSA, Inc. and Moniker Privacy Services, WIPO Case No. D2007-1743. Further, UDRP panels typically apply a “low threshold” for this test under the Policy’s first element. See Mile, Inc. v. Michael Burg, WIPO Case No. D2010-2011.
Respondent has argued that the Domain Name is not confusingly similar to Complainant’s CHEEKYLOVERS mark because, in contrast to the shared term “cheeky”, which is a descriptive adjective, the term “lovers” in Complainant’s trademark and “devil” in the Domain Name are the dominant elements in each and share no visual or aural similarities, and are completely distinct in meaning. The Panel disagrees. The “cheeky” element is more likely the dominant portion, it being generally accepted that the portion of a mark appearing first is that which will be first identified by consumers (and registration authorities). Moreover, the shared term “cheeky” in combination with the words “lover” or “devil” creates an overall impression that could lead to confusion among Internet users as to whether the Domain Name is associated in some way with Complainant. Red Bull GmbH v. Paul Battista, WIPO Case No. D2010-0353 (quoting SANOFI-AVENTIS v. Jason Trevenio, WIPO Case No. D2007-0648) (“[c]onfusion in this context, in the sense of bewilderment or failing to distinguish between things, may be regarded as a state of wondering whether there is an association, rather than a state of erroneously believing that there is one. An appropriate formulation might be: ‘Is it likely that, because of the similarity between the domain name on the one hand and the Complainant’s trademark on the other hand, people will wonder whether the domain name is associated in some way with the Complainant?’”).
The Panel finds that, based on a comparison limited only to Complainant’s CHEEKYLOVERS trademark and the Domain Name <cheekydevil.com>, that the Domain Name incorporates the dominant portion of Complainant’s CHEEKYLOVERS mark, namely the word “cheeky” and that there is confusing similarity under the Policy.
Accordingly, Complainant has satisfied the first element of the Policy.
B. Rights or Legitimate Interests; Registered and Used in Bad Faith
There are serious questions raised under both elements.
The Panel observes that Complainant and Respondent are competitors in the same business, providing online dating services. Complainant has used its CHEEKYLOVERS brand since 2003, including use of its <cheekylovers.com> domain name to provide online dating services since 2011. Complainant has brought substantial allegations against Respondent concerning its use of the Domain Name commencing in 2014 for an online dating website, at a time when Complainant’s unregistered rights in its CHEEKYLOVERS mark were arguably already established, for example, in the United Kingdom. Complainant has alleged that Respondent’s use of the Domain Name in combination with the content of the website to which it resolves (including a logo alleged to be similar to Complainant’s graphic design logo), seems calculated to falsely suggest to Internet users that there is an affiliation between Complainant and Respondent. Based on the evidence in the record, the Panel considers that Complainant’s concerns arguably have some substance to them. (However, concerning Complainant’s allegation that Respondent’s use of the name “cheekydevils” for its Domain Name and online dating service infringes Complainant’s CHEEKYLOVERS trademark, the Panel makes no comment except to say that the Policy diverges from national trademark laws on important substantive and procedural aspects (including procedural rules where a more robust exchange of evidence is permitted).) Complainant has also alleged that it is unlikely that Respondent was unaware of Complainant’s CHEEKYLOVERS trademark and its operations in the online dating field when Respondent commenced using the Domain Name in 2014 for an online dating service. Respondent did not directly respond to this particular allegation, instead emphasizing that Respondent registered the Domain Name prior to Complainant’s recent registration of its CHEEKYDEVIL mark (as to which Respondent has applied to the EUIPO for a declaration of invalidity); however, Complainant has not relied on its CHEEKYDEVIL mark to support its Complaint in this case under the Policy. As to Complainant’s allegation that Respondent has used the Domain Name in connection with a website involved in fraudulent practices, a claim that Respondent has rejected, the Panel makes no finding.
The Panel finds that there are serious questions concerning whether the Domain Name, when considered in combination with the content of Respondent’s website and practices used by Respondent, might be considered bad faith use and fail to give rise to any rights or legitimate interest in the Domain Name. The Panel considers that if an Internet user went to the website linked to the Domain Name and observed that it is used as a dating site and contains a logo similar to Complainant’s graphic design logo, and that the Domain Name shares the word “cheeky” with Complainant’s CHEEKYLOVER mark, this would add weight to the overall potential for confusion, in view of the totality of the circumstances. Further, while Respondent may not have registered the Domain Name in bad faith in 2008, Respondent’s use of the Domain Name for a dating site commencing in 2014, after Complainant’s rights in its CHEEKYLOVERS mark were arguably established, raises serious questions about whether Respondent use of the Domain Name was bad faith use.
The Panel finds that the present case appears to raise issues that go beyond the scope of the Policy. Such issues as passing off or disputes relating to trademark validity and/or infringement require a comprehensive examination of evidence, which is not afforded to UDRP panels in an administrative proceeding such as this. The Panel notes that these questions may be better addressed in a court of competent jurisdiction with greater inquisitorial powers to come to a determination as to the abovementioned questions. Based on the available record, the Policy alone does not appear to be the appropriate instrument to resolve the Parties’ dispute.
For all of the foregoing the foregoing reasons, the Complaint is denied.
Christopher S. Gibson
Date: September 13, 2016