WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tinder, Inc. v. Echo Xia, Moon Ren
Case No. D2017-1139
1. The Parties
The Complainant is Tinder, Inc. of Dallas, Texas, United States of America ("USA" or "US"), represented by Locke Lord LLP., USA.
The Respondents are Echo Xia of Mianyang, Sichuan, China; Moon Ren of Chengdu, Sichuan, China, self-represented.
2. The Domain Names and Registrars
The disputed domain name <tinder-dating.com> is registered with Name.com, Inc. (Name.com LLC); the disputed domain name <tinder-dating-site.com> is registered with GoDaddy.com, LLC. Both of these disputed domain names shall be referred to as the "Domain Names". Both of these registrars shall be referred to as the "Registrars".
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 9, 2017. On June 12, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On June 12, 2017 and June 13, 2017, the Registrars GoDaddy.com, LLC and Name.com, Inc. (Name.com LLC) transmitted by email to the Center their verification response confirming that the Respondents are listed as the registrants 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 and 4, the Center formally notified the Respondents of the Complaint, and the proceedings commenced on June 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 10, 2017. On June 20, 2017 and June 26, 2017, the Respondent Moon Ren submitted two emails indicating that it has closed the website. On July 8, the Respondent Echo Xia filed another email indicating it has closed the website and consulting whether it can continue to use the domain name registered in his name if he changes the website to a review site. The Center notified the Parties the commencement of panel appointment process on July 11, 2017.
The Center appointed Dawn Osborne as the sole panelist in this matter on July 13, 2017. 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, in the business of online dating services owns US trade mark registrations for TINDER with first use in commerce recorded as August 2, 2012 (registration no. 4,479,131 registered on February 4, 2014).
The Domain Name <tinder-dating.com> was registered on February 11, 2015, the Domain Name
<tinder-dating-site.com> was registered on May 27, 2016. The Domain Names have been linked to sites offering and linking to competing on line dating services with no connection to the Complainant.
5. Parties' Contentions
The Complainant's contentions can be summarized as follows:
Consolidation of the Domain Names in one complaint is permitted by the Rules as both Domain Names incorporate the TINDER mark which is a service mark and trade name of the Complainant, both Domain Names' contacts are based in Sichuan province of China, and both Domain Names are used in an identical manner pointing visitors to the website "www.millionairematch.com".
The Complainant, in the business of online dating services, has since 2012 used TINDER as a service mark and owns US registrations for this mark dating back to 2014.
The Domain Names were not registered until 2015 (<tinder-dating.com>) and 2016 (<tinder-dating-site.com>).
Adding the words "dating" and/or "site" and the generic Top-Level Domain ("gTLD") ".com" to TINDER does nothing to differentiate the Domain Names from the Complainant's mark.
The Respondents have no rights or legitimate interests in the Domain Names.
The Respondents are not affiliated with or authorized by the Complainant in any way. They are not commonly known by the Domain Names.
The Respondents have not used the Domain Names in connection with a bona fide offering of goods and services, but have used the Domain Names to trade on the Complainant's goodwill by luring Internet users to the sites linked to by the Domain Names to offer competing online dating services to suggest a connection with the Complainant where there is none. This is not a legitimate noncommercial or fair use.
The Domain Names have been registered and used in bad faith. The Respondents deliberately attempt to attract users by creating confusion with the Complainant's trade marks as to the source, sponsorship, affiliation and endorsement of the sites linked to the Domain Names.
The Respondents did not formally respond to the Complainant, however they did not dispute the allegations made by the Complainant's or oppose consolidation of the dispute relating to the Domain Names into one Complaint. Instead the Respondents informed the Center in emails that the sites at the Domain Names have been closed and enquired if they could continue to use the Domain Names if they changed to a review site of Tinder.
6. Discussion and Findings
Preliminary Issue – Consolidation of the Complaint for the Domain Names.
The Respondents have not opposed the consolidation of the Complaint to cover both Domain Names and have not denied that the Respondents are connected. The Domain Names have been used in highly similar ways and the way the Respondents both reacted to the Complaint in the first instance was identical. The Panel orders that the Complaint may be consolidated to cover both Domain Names.
Identical or Confusingly Similar
The Complainant is a provider of online dating services and is the owner of the TINDER trade mark in the US with first use in commerce recorded as 2012.
The Domain Names consist of a name identical to the Complainant's registered mark TINDER plus the generic words "dating" and/or "site" and the gTLD ".com". The addition of these generic words does not serve to distinguish the Domain Names from the Complainant's TINDER mark especially bearing in mind that they relate to the business of online dating services and the Panel finds that the Domain Names are confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy. The gTLD ".com" when it does not form part of the Complainant's trade mark and is merely there as a functional element of a Domain Name as in this case does not serve to distinguish the Domain Names from the Complainant's mark.
As such the Panel finds that the Domain Names are confusingly similar to the Complainant's mark and the Complainant has satisfied the first element of the Policy.
Rights or Legitimate Interests
It is clear from the evidence that the Respondents have used the sites at the Domain Names to promote and link to services in competition with those of the Complainant. The content of the sites at the Domain Names indicates that the Respondents were aware of the significance of the TINDER trademark at the time of registration. Indeed the Respondents refer to the Complainant as "Tinder" in their email correspondence with the Center indicating that the Respondents are aware of the Complainant, its business and its mark. The Respondents' usage was not fair as the sites attached to the Domain Names offer competing services without making it clear there is no commercial connection between those sites and the Complainant. .The Panel finds this use confusing. As such it cannot amount to the bona fide offering of goods and services. The Respondents have not answered this Complaint substantively and have not provided any explanation why they have used the Complainant's name for the same and competing business. Although the Respondents mention using the Domain Names for a review site of the Complainant in correspondence with the Center there is no evidence this has happened. As such the Panel finds that the Respondents do not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second element of the Policy.
Registration and Use in Bad Faith
The Complainant alleges that the Respondents' use of the site is commercial and they are using it to make profit from services which compete with the Complainant in a confusing manner. The content of the Respondents' websites and emails with the Center make it clear that they were aware of the Complainant's rights at all relevant times. Accordingly, the Panel holds that the Respondents have intentionally attempted to attract for commercial gain Internet users to their websites by creating likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the websites sufficient to satisfy paragraph 4 (b)(iv) of the Policy. This would also appear to be disruptive in a competitive way sufficient to satisfy 4 (b)(iii) of the Policy also.
As such, the Panel believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third element of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names, <tinder-dating.com> and <tinder-dating-site.com>, be transferred to the Complainant.
Date: July 17, 2017