Complainant is Tumblr, Inc. of New York, United States of America, internally represented.
Respondent is Richard Fortier of Greenville, New Hampshire, United States of America.
The disputed domain name <yumblr.com> (the “Disputed Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 28, 2013. On March 1, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 1, 2013, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on March 7, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 27, 2013. The Center notified Respondent Default on March 28, 2013. A third party sent an email communication on March 28, 2013, to which Complainant replied on the same date. Respondent sent an email to the Center on March 29, 2013 and on April 17, 2013.
The Center appointed Mark Partridge as the sole panelist in this matter on April 16, 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.
Complainant is a well-known social media site and owner of trademark rights in the name and mark TUMBLR. Complainant has used the TUMBLR mark since 2007. The mark is inherently distinctive and entitled to common law rights in the United States upon first use in commerce. The TUMBLR mark is also the subject, inter alia, of United States Trademark Registration, Reg. No. 3,714,214, which constitutes prima facie evidence of nationwide trademark rights from the date of filing on October 27, 2008. The filing date of this application is subsequent to the registration date of the Disputed Domain Name, and therefore is not a factor in this decision.
The Disputed Domain Name was registered on February 20, 2008, after Complainant’s first use and effective date of nationwide rights. The Disputed Domain Name is used to redirect Internet users to an unrelated site with links to other commercial businesses.
Complainant contends that the Disputed Domain Name is an example of typosquatting; that Respondent lacks any right or legitimate interest in the Disputed Domain Name; and that the Disputed Domain Name was registered and used in bad faith.
Respondent asserted that Complainant was “illegally” attempting to claim rights in the Disputed Domain Name which he has “owned for five years”, but otherwise did not reply to the merits of Complainant’s contentions.
Respondent asserts that he is confused by the UDRP process and is not aware of how to contest the Complaint. Nevertheless, Respondent successfully obtained the Disputed Domain Name registration online, linked the Disputed Domain Name to a commercial site, and apparently profited from this conduct. Respondent agreed to submit to the UDRP process as part of the registration contract when he registered the Disputed Domain Name. The UDRP process is over ten years old, and is well explained on the WIPO site and elsewhere on the Internet. The Panel finds that Respondent had ample time to obtain advice and assistance on the UDRP process and sufficient time to respond to the merits of the Complaint. This matter is therefore ready for decision based on the clear record presented by Complainant.
The Panel finds that the Disputed Domain Name is confusingly similar to the TUMBLR mark owned by Complainant, as the prior user of the distinctive mark. The Disputed Domain Name <yumblr.com> seems to be a classic example of typosquatting that relies on an easy keyboard mistake in substituting the letter “y” for the adjacent letter “t” on a qwerty keyboard.
The Panel finds in favor of Complainant on this element of its Complaint.
Complainant has made a prima facie case that Respondent lacks any rights or legitimate interests in the Disputed Domain Name. Respondent is not authorized to use the TUMBLR mark; is not making bona fide use of the Disputed Domain Name for a non-infringing purpose; he is not known by the “yumblr” name; and is not using the Disputed Domain Name fairly for noncommercial comment or use. Instead, it appears the Disputed Domain Name is used to redirect Internet users to unrelated commercial site for the apparent financial benefit of Respondent.
Respondent has not rebutted these facts.
The Panel finds in favor of Complainant on this element of its Complaint.
The record shows by a preponderance of evidence that the Disputed Domain Name was registered by Respondent as a deliberate act of typosquatting and was deliberately used in bad faith to mislead Internet users to an unrelated site for commercial gain.
Respondent has provided no good faith justification for its registration and use of the Dispute Domain Name, and none if suggested or colorable based on the record presented.
The Panel finds in favor of Complainant on this element of its Complaint.
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 <yumblr.com> be transferred to Complainant.
Mark Partridge
Sole Panelist
Date: May 13, 2013