WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Match Group, LLC v. Raimundo Rodriguez, Swipebuster
Case No. DME2020-0006
1. The Parties
The Complainant is Match Group, LLC, United States of America (“United States”), internally represented.
The Respondent is Raimundo Rodriguez, Swipebuster, Mexico.
2. The Domain Name and Registrar
The disputed domain name <swipebuster.me> is registered with Instra Corporation Pty Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 22, 2020. On August 24, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 27, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 4, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 14, 2020.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 6, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 7, 2020.
The Center appointed Antony Gold as the sole panelist in this matter on October 21, 2020. 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 and its affiliates provide a number of online dating and matchmaking services, including the “Tinder” dating website and its associated mobile application. Since at least 2013, the Complainant has used the brand name “Swipe” in conjunction with its online and mobile application products, in particular in connection with the interface whereby users can discover or discard potential matches.
The Complainant has registered a number of trade and service marks to protect its Swipe brand. These include, by way of example only, United States trade mark, registration number 4465926, for SWIPE in class 9, registered on January 14, 2014.
The disputed domain name was registered on April 7, 2017 and redirects Internet users to a website at “www.cheaterbuster.net”. This website is headed “Cheaterbusters” and it contains functionality enabling users to conduct a paid-for, online search to seek to establish whether a person is using Tinder. A statement towards the foot of the home page explains that the website was “Formerly known as Swipebuster” and the home page contains a further note that “Swipebuster is now Cheaterbuster”.
5. Parties’ Contentions
The Complainant says that the disputed domain name is identical or confusingly similar to a trade mark or service mark in which it has rights. It refers to its portfolio of SWIPE trade and service marks, full details of one of these marks having been given above, and says that the disputed domain name incorporates its SWIPE mark in its entirety, merely adding to it the generic word “buster”. On its face, the disputed domain name is virtually identical to, or at least confusingly similar to, the Complainant’s SWIPE mark.
The Complainant says also that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In order to have rights or a legitimate interest in the disputed domain name, the Respondent must have been using it for a bona fide purpose prior to it being notified of a dispute, or the commencement of its use must pre-date the establishment of the Complainant’s “Tinder” brand or it must be used according to its linguistic meaning. None of these are true. In fact, the Respondent is the same person who registered <tinderbuster.com>, <swipebuster.com>, and <swipebuster.se>, all of which have been the subject of earlier decisions by UDRP panels in the Complainant’s favour.1
Lastly, the Complainant says that the disputed domain name was registered and is being used in bad faith. The earlier decisions under the Policy concerning the <tinderbuster.com>, <swipebuster.com>, and <swipebuster.se> domain names ordered that each of them were to be transferred to the Complainant or its predecessor. Whilst the registrant of each of the earlier domain names sought to conceal its identity, all the domain names were used to operate the same business and the content of each of the websites to which each domain name resolved was the same, as is the content on the “www.cheapbuster.net” website to which the disputed domain name presently resolves. The disputed domain name is not therefore being used for any legitimate purpose.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Dealing, first, with the Respondent’s failure to file a response to the Complaint, paragraph 14(b) of the Rules provides that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under these Rules, the Panel shall be entitled to draw such inferences from this omission as it considers appropriate.
Paragraph 4(a) of the Policy provides that the Complainant proves each of the following three elements in order to succeed in its Complaint:
(i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has provided details of the many registered trade marks it owns for SWIPE, which establish its rights in this mark.
As a technical requirement of registration, the country code Top-Level Domain (“ccTLD”), that is “.me” in the case of the disputed domain name, is typically disregarded when assessing confusing similarity. The only difference between the Complainant’s SWIPE mark and the disputed domain name is the additional word “buster”, which is placed after the mark. This does not prevent a finding that the disputed domain name is confusingly similar to the Complainant’s mark. As explained at section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”): “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.”
The Complainant’s SWIPE trade mark is recognizable within the disputed domain name and the Panel accordingly finds that the disputed domain name is confusingly similar to a trade mark in which the Complainant has rights.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out circumstances, without limitation, by which a respondent might demonstrate that it has rights or a legitimate interest in a domain name. These are, summarized briefly: if the respondent has been using the domain name in connection with a bona fide offering of goods and services, if the respondent has been commonly known by the domain name, or if the respondent has been making a legitimate noncommercial or fair use of the domain name.
In evaluating whether the Respondent is using the disputed domain name in connection with a bona fide offering of goods and services it is of note that the Respondent’s business is conducted through a separate website at “www.cheaterbuster.net”. The sole function which the disputed domain name performs is to redirect those Internet users who visit the disputed domain name to the Respondent’s website. The disputed domain name is likely to have a particular value in this respect having regard to the fact that the Respondent’s business was previously known as “Swipebuster”. Moreover, the Complainant’s SWIPE trade mark is the distinctive component of the disputed domain name and it is the Complainant’s repute in that mark that will attract Internet users to it.
Section 2.15 of the WIPO Overview 3.0 explains that, to support a claim to rights or legitimate interests under the Policy, the use of a domain name must not be abusive of third-party trademark rights. Irrespective of the lawfulness, or otherwise, of the Respondent’s business, the use of the disputed domain name, purely in order to funnel traffic to his website enables the Respondent to derive a significant commercial advantage from his unauthorized use of the Complainant’s mark. Such use abuses the Complainant’s trade mark rights and therefore does not comprise a bona fide offering of goods and services.
The second and third circumstances under paragraph 4(c) of the Policy are inapplicable; there is no evidence that the Respondent is commonly known by the disputed domain name and the use to which the disputed domain name has been put is commercial in character and does not constitute fair use.
The Complainant has made out a prima facie case under the second element and the burden of production accordingly shifts to the Respondent (see section 2.1 of the WIPO Overview 3.0). In the absence of any response to the Complaint by the Respondent, the Panel finds that he has no rights or legitimate interests with respect to the disputed domain name.
C. Registered and Used in Bad Faith
The respondent in the UDRP proceedings relating to <tinderbuster.com> is the same as the Respondent in these proceedings, albeit the Complainant relied in those proceedings on its trade mark rights in TINDER and not on its SWIPE trade mark. The respondent in the <swipebuster.com> proceedings was different and the identity of the underlying respondent in the proceedings relating to <swipebuster.se> was protected by a privacy service and is not known. Accordingly, whilst there may well be a connection between all the registrants, as the Complainant has contended, the Panel considers the third element of the Policy independently of the earlier proceedings.
As at the date of registration of the disputed domain name in April 2017, the Complainant’s Tinder application and its SWIPE trade mark were well-known. The only known use of the disputed domain name has been for the purposes described above. It is clear from this that the Respondent was aware of the Complainant as at the date of registration of the disputed domain name and that he registered it for the purpose to which it has subsequently been put.
Paragraph 4(b) of the Policy sets out four circumstances which, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The Respondent’s activities do not fall precisely within any of them. They approximate closely to the circumstance set out at paragraph 4(b)(iv) which provides, in summary, that bad faith registration and use will be found if a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website. However, it is questionable whether Internet users who access the Respondent’s website, having been directed there via the disputed domain name, are likely to be confused into thinking that either the disputed domain name or the Respondent’s website are operated by, or with the authority of, the Complainant.
The circumstances set out at paragraph 4(b) of the Policy are, however, expressed to be without limitation, and conduct by a respondent which is essentially the same in its intention and effect as one or more of them will be considered in a broadly similar way; see, by way of example, Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 and Spoke Media Holdings, Inc. v. Andrey Volkov, WIPO Case No. D2010-1303. And see also section 3.1 of the WIPO Overview 3.0 which explains that, even where a complainant may not be able to demonstrate the literal or verbatim application of one of these circumstances, “evidence demonstrating that a respondent seeks to take unfair advantage of, abuse, or otherwise engage in behavior detrimental to the complainant’s trademark would also satisfy the complainant’s burden”.
The registration and use by the Respondent of the disputed domain name uses the Complainant’s SWIPE trade mark, without authority, in order to increase traffic to his website. It accordingly takes unfair advantage of, and is detrimental to, the Complainant’s repute in its SWIPE mark. The Panel therefore finds that the Respondent’s registration and use of the disputed domain name is in bad faith.
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 <swipebuster.me> be transferred to the Complainant.
Date: November 4, 2020
1 Tinder, Inc. v. Raimundo Rodriguez Huter, WIPO Case No. D2016-0726 (<tinderbuster.com>), dated June 6, 2016, Tinder, Inc. v. Edgar Jimenez, WIPO Case No. D2016-0769 (<swipebuster.com>), dated June 10, 2016 and Match Group, LLC v. PRQ Registry, (<swipebuster.se>), WIPO Case No. DSE2018-0033, dated July 19, 2018.