WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Avid Dating Life Inc. v. On Behalf of Customers/Domain Admin; Admin Domain, AdminDomain

Case No. D2015-0952

1. The Parties

The Complainant is Avid Dating Life Inc. of Toronto, Ontario, Canada, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.

The Respondents are On Behalf of Customers of Shanghai, China/ Domain Admin of Portland, Oregon, United States of America; Admin Domain, AdminDomain of China.

2. The Domain Names and Registrars

The disputed domain name <ashleymadisondatingsite.com> is registered with eName Technology Co., Ltd. The disputed domain name <ashleymadisonreviews.com> is registered with EJEE Group Holdings Limited.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 4, 2015. On June 5, 2015, the Center transmitted by email to eName Technology Co., Ltd. and EJEE Group Holdings Limited (the “Registrars”) a request for registrar verification in connection with the disputed domain names. On June 8, 2015, the Registrar eName Technology Co., Ltd. transmitted by email to the Center its verification response confirming that the Respondent Domain Admin is listed as the registrant for the disputed domain name <ashleymadisondatingsite.com> and providing the contact details. On June 10, 2015, the Registrar EJEE Group Holdings Limited transmitted by email to the Center its verification response confirming that the Respondent Admin Domain, AdminDomain is listed as the registrant for the disputed domain name <ashleymadisonreviews.com> and providing the contact details.

The Center noted that the Complaint was filed against “ON BEHALF OF CUSTOMERS” and the disputed domain names were previously registered with the registrar Dynadot LLC. Accordingly, the Center requested the Registrars to clarify when the disputed domain names were transferred to them. On June 12, 2015, the Registrar eName Technology Co., Ltd. confirmed that the disputed domain name <ashleymadisondatingsite.com> was transferred to it on June 5, 2015 at 7:32AM (UTC+8); and the Registrar EJEE Group Holdings Limited confirmed that the disputed domain name <ashleymadisonreviews.com> was transferred to it on June 5, 2015 at 7:30AM (UTC+8). In response to a notification by the Center regarding change in registrant and registrar information, the Complainant filed an amended Complaint on June 19, 2015 including a request for consolidation of multiple Respondents.

On June 15, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On June 19, 2015, the Complainant requested that English be the language of the proceeding. The Respondents on record did not comment on the language of the proceeding by the specified due date.

On June 12, 2015, the Center received an email communication in Chinese from a Ms. Dai claiming to be the registrant of the disputed domain name <ashleymadisondatingsite.com>, and emphasizing she had nothing to do with the disputed domain name <ashleymadisonreviews.com>. The Center noted that Ms. Dai was not listed as the registrant for either of the disputed domain names. Accordingly, the Center requested Ms. Dai to clarify her relationship with the Respondents on record. On the same day, Ms. Dai confirmed again that she was the registrant of the disputed domain name <ashleymadisondatingsite.com> without any supporting evidence and reiterated that she had nothing to do with the disputed domain name <ashleymadisonreviews.com>. Ms. Dai also requested that Chinese be the language of the proceeding and that the Complaint be translated into Chinese. A similar request was received from Ms. Dai by the Center on June 24, 2015.

On June 22, 2015, in response to an email communication from the Complainant’s representatives, the previous registrar, Dynadot LLC, confirmed that it was no longer the registrar of the disputed domain names. Dynadot LLC also advised its policy was not to lock domain names upon receipt of complaints, but upon receipt of official correspondence (e.g., verification requests) from arbitrators, and that it had not received such a request prior to effecting transfer of the disputed domain names to the current Registrars.

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 Respondents on record of the Complaint in both Chinese and English, and the proceeding commenced on June 24, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was July 14, 2015. The final Response for the disputed domain name <ashleymadisondatingsite.com> was filed in Chinese with the Center on July 13, 2015. Between June 24, 2015 and July 13, 2015, several email communications were received from Ms. Dai objecting to the language of the proceeding and consolidation of multiple Respondents.

The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on July 21, 2015. 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 a company incorporated in Canada and the owner of an online dating and social networking service operated under the trade mark ASHLEY MADISON (the “Trade Mark”). The Complainant is the owner of registrations for the Trade Mark in Canada, the United States and the European Union, the earliest registration dating from October 2003. The Trade Mark has been used continuously since 2001.

The Registrars’ confirmed registrants are a Domain Admin located in the USA for the disputed domain name <ashleymadisondatingsite.com> and an Admin Domain, AdminDomain apparently located in China for the disputed domain name <ashleymadisonreviews.com>.

The Response for the disputed domain name <ashleymadisondatingsite.com> was apparently filed by an individual resident in China.

The disputed domain names were both registered on the same date, June 18, 2013. The individual claiming to be the owner of the disputed domain name <ashleymadisondatingsite.com> stated that she purchased it on “June 10, 2015” and she redirects it to “https://ashleymadisonsucks.wordpress.com/”.

The disputed domain name <ashleymadisonreviews.com> is currently redirected to “www.ashleymadisonscam.org”.

Prior to the filing of the Complaint, the disputed domain names were resolved to domain name parking websites:

(1) With sponsored links to third party websites providing online dating and social networking services in competition with those offered by the Complainant under the Trade Mark; and

(2) Containing “this domain name is listed for sale” banners linked to a web page inviting users to submit their contact details and an offer for the purchase of the disputed domain names in USD, (the “Websites”).

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain names, and the disputed domain names were registered and are being used in bad faith.

B. Respondent

The Response was filed in the name of Ms. Dai, and only in respect of the disputed domain name <ashleymadisondatingsite.com>.

In the Response, Ms. Dai agrees that the disputed domain name <ashleymadisondatingsite.com> is identical or confusingly similar to the Trade Mark, contends she has rights or legitimate interests in the disputed domain name <ashleymadisondatingsite.com>, and contends the disputed domain name <ashleymadisondatingsite.com> has not been registered and used in bad faith. Ms. Dai also repeats her request that the language of the proceeding be Chinese.

6. Discussion and Findings

6.1 Cyberflight

Paragraph 8(a) of the Policy prohibits domain name holders from transferring domain name registrations to new holders during pending UDRP proceedings.

Paragraph 8(b) of the Policy prohibits domain name holders from changing registrars during pending UDRP proceedings.

The evidence demonstrates, in the Panel’s opinion, that cyberflight occurred when the disputed domain names were transferred to the new holders and Registrars on June 5, 2015, one day after the Complainant had filed its Complaint with the Center and served it on the registrant and the registrar Dynadot LLC.

This is consistent with prior UDRP decisions, which have held that UDRP proceedings commence as at the date of filing of the Complaint, not the date of formal notification of the proceedings (see e.g. Humana Inc. v. CDN Properties Incorporated, WIPO Case No. D2008-1688).

Whilst the Panel has no jurisdiction over the registrar Dynadot LLC, the Panel would also query whether allowing transfer of domain name registrations to new registrants and to new registrars after having been served with the UDRP Complaint is consistent with its obligations to comply with the Policy.

6.2 Consolidation of Respondents

In light of the Panel’s finding of cyberflight, the Panel considers it is not strictly necessary to consider the Complainant’s consolidation request.

The Panel would further note, for the record, that, notwithstanding the claims of Ms. Dai to the contrary, there is sufficient evidence to support consolidation of the Respondents in any event under paragraphs 3(c) and 10(e) of the Rules.

Both the historical WhoIs records for the disputed domain names submitted by the Complainant in support of its consolidation request, and the evidence of the use of the same Websites, indicate that common control has been exercised over both the disputed domain names and the Websites. Accordingly, the Respondents are hereinafter referred to as the “Respondent”.

6.3 Language of the Proceeding

The language of the registration agreements for the disputed domain names at the time of filing of the Complaint was English. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement.

In light of the Panel’s finding of cyberflight, the Panel determines that the language of the proceeding shall be English. The Respondent should not be permitted to circumvent the usual practice regarding the language of the proceeding by engaging in cyberflight in breach of the Policy.

The Panel would further note that the protestations of Ms. Dai as to her lack of proficiency in English are not convincing, and, in any event, there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in English. In particular, both the Websites, and the current websites to which the disputed domain names have more recently been resolved, are English language websites. These factors suggest that, in all the circumstances, and taking into account the Panel’s discretion under paragraph 11(a) of the Rules regarding the language of the proceeding, the appropriate language of the proceeding should be English. The Panel, who is conversant in both English and Chinese, will therefore accept the Complaint and amended Complaint filed in English, the Response filed in Chinese, and will render the Panel’s decision in English.

6.4 Substantive Elements of the Policy

The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration (which incidentally also predate the date of registration of the disputed domain names by over 12 years).

Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trade mark for purposes of the Policy when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name. See paragraph 1.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).

The Panel finds the addition of the generic words “dating site” and “reviews”, of which the former are directly descriptive of the services offered by the Complainant under the Trade Mark, does not serve to distinguish the disputed domain names from the Trade Mark in any significant way.

The Panel therefore finds that the disputed domain names are confusingly similar to the Trade Mark.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the disputed domain name:

(i) before any notice to the Respondent of the dispute, the Respondent’s use of, or demonstrable preparations to use, the disputed domain names or a name corresponding to the disputed domain names in connection with a bona fide offering of goods or services; or

(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain names even if the Respondent has acquired no trade mark or service mark rights; or

(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.

There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain names or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent’s registration of the disputed domain names by over 12 years. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names, and the burden is thus on the Respondent to produce evidence to rebut this presumption.

The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain names have previously been used in respect of the Websites, which offered the disputed domain names for sale, were not authorised by the Complainant, and provided sponsored links to websites providing dating services in competition with those offered by the Complainant under the Trade Mark, in order to generate pay-per-click revenue for the Respondent.

Ms. Dai claims in the Response filed in respect of the disputed domain name <ashleymadisondatingsite.com> that this disputed domain name was legitimately purchased on “June 10, 2015” and has since been used in respect of a legitimate not-for-profit website. This disputed domain name is currently automatically forwarded to a website at “https://ashleymadisonsucks.wordpress.com” which describes the Complainant’s business as a scam and contains defamatory accusations against the Complainant and its business, for example (dating of July 2009):

“The more I’ve dug into the way Ashley Madison functions, the more I truly believe that this is just a big scam […]. I believe that it is and has been their business practice to create fake profiles to entice people to become paid members […]”.

The Panel finds the content of the current website does not amount to legitimate criticism and accordingly does not give rise to rights or legitimate interests in the disputed domain name <ashleymadisondatingsite.com> (see paragraph 2.4 of WIPO Overview 2.0).

The Panel applies the same reasoning to the disputed domain name <ashleymadisonreviews.com>, which is currently automatically forwarded to a similar website at “www.ashleymadisonscam.org”.

The Panel further considers, given the Respondent has engaged in cyberflight, the Respondent’s conduct in setting up the current websites amounts to no more than a thinly-veiled attempt to manufacture rights or legitimate interests in respect of the disputed domain names.

There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names.

There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.

The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain names.

C. Registered and Used in Bad Faith

In light of the evidence of the Respondent’s use of the Websites in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under both paragraphs 4(b)(i) and 4(b)(iv) of the Policy.

The Panel finds the Respondent’s conduct in engaging in cyberflight and setting up the current website for the disputed domain name <ashleymadisondatingsite.com> amount to further grounds in support of a finding of bad faith.

For all the foregoing reasons, the Panel concludes that the disputed domain names have been registered and are being used in bad faith.

7. Decision

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 names <ashleymadisondatingsite.com> and <ashleymadisonreviews.com> be transferred to the Complainant.

Sebastian M.W. Hughes
Sole Panelist
Dated: August 4, 2015