WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tinder, Incorporated v. Whoisguard Protected, Whoisguard, Inc. / Kyle Powers
Case No. D2017-0005
1. The Parties
Complainant is Tinder, Incorporated of Dallas, Texas, United States of America ("US"), represented by Locke Lord LLP., US.
Respondent is Whoisguard Protected, Whoisguard, Inc. of Panama, Panama / Kyle Powers of San Francisco, California, US.
2. The Domain Name and Registrar
The disputed domain name <tinderplusplus.com> is registered with eNom, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 3, 2017. On January 4, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 6, 2017, 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on January 6, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 26, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on January 27, 2017.
The Center appointed Lawrence K. Nodine as the sole panelist in this matter on February 6, 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
Complainant is in the business of providing Internet-based dating and matchmaking services. On February 4, 2014, Complainant obtained trademark registration in the US for the mark TINDER (registration no. 4479131), which Complainant uses as a service mark and trade name for its online and mobile applications for its online services. Complainant has used the TINDER mark in relation to Complainant's online dating services business since 2012. Complainant's website "www.gotinder.com" provides a mobile application ("Tinder App") that users can download to a mobile device to access Tinder's dating services. Since its launch in September 2012, Tinder has gained a robust following of users. For example, by September 2014, there were 10 million daily Tinder users. By March 2015, there were an estimated 50 million Tinder users. Sixty percent of Tinder users are in North America. In addition to the TINDER mark, Complainant also owns the TINDER PLUS mark, which was first used in commerce in March 2015 and was registered in the US on March 1, 2016.
The disputed domain name <tinderplusplus.com> was registered on November 12, 2014. At least until September 27, 2016, the domain name resolved to a website that offered a desktop-based software application for a dating service.
5. Parties' Contentions
Complainant argues that the disputed domain name is virtually identical or confusingly similar to Complainant's marks as it incorporates the TINDER and TINDER PLUS marks in their entirety. According to Complainant, rather than differentiating the domain name from the trademarks, the addition of the word "plus" (to the mark TINDER PLUS) or the words "plus plus" (to the mark TINDER) "strengthen the perceived connection to Complainant." Additionally, Complainant asserts that Respondent used the disputed domain name to offer software and related services in Complainant's field of business until at least October 7, 2016, when Complainant sent a cease and desist letter to Respondent.
Complainant states that Respondent has no rights or legitimate interests in the disputed domain name. According to Complainant, Respondent's use of the disputed domain name is not bona fide as Respondent lured customers to the disputed domain name using a "confusingly similar web address and a website". Complainant asserts that the "www.tinderplusplus.com" website offered a desktop application with features that the Tinder App offers to purchasers of the Tinder Plus service.
Lastly, Complainant argues that the disputed domain name was registered and is being used in bad faith because Respondent was obviously aware of Complainant's TINDER mark when it registered the disputed domain name. Complainant also alleges that Respondent deliberately used the disputed domain name to attract users by creating confusion about the source, sponsorship, and affiliation of the disputed domain name. Moreover, Complainant also alleges that Respondent continues to use the disputed domain name in bad faith as, after receiving Complainant's cease and desist letter, Respondent replaced the entire content of the site "www.tinderplusplus.com" with a copy of the letter in an attempt to vilify Complainant.
Respondent did not respond to Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that Complainant's trademark registrations are sufficient to prove that it has rights in the TINDER trademark. Moreover, the disputed domain name incorporates the TINDER trademark. The addition of "plusplus" does not avoid confusion. "Plus" is a non-distinctive word that indicates an enhancement of the service. Even after adding "plusplus" to the disputed domain name, the TINDER mark is still recognizable. Consequently, Complainant satisfies paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel finds that Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. This shifts the burden to Respondent, who has not responded. Respondent is not affiliated with Complainant. It appears that Respondent was offering added functionality to Complainant's TINDER application and passing himself off as Complainant, duplicating on the <tinderplusplus.com> webpages Complainant's "Tinder" logo
Mimicking Complainant's logo in this manner does not support a finding that Respondent is making a bona fide offering of goods or services nor fair use of Complainant's marks. OLX, B.V. v. Glenn Monfort, Cyberthread Solutions Inc., WIPO Case No. D2015-1899 (use of logo evidence of passing off; not bona fide use); Houghton Mifflin Co. v. Weathermen, Inc., WIPO Case No. D2001-0211 (no bona fide offering where website's use of complainant's logo... suggested that website was the official Curious George website). Moreover, the Panel finds that Respondent's use of the disputed domain name does not fall under the language of paragraph 4(c)(ii) or paragraph 4(c)(iii) of the Policy. Accordingly, the Panel finds that Complainant has carried its burden and satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name was registered and used in bad faith. With regard to bad faith registration, the record shows that by the time Respondent registered the disputed domain name the TINDER mark had gained considerable recognition. Respondent was manifestly aware of Complainant's mark when it registered the disputed domain name. Respondent's intent was to add functionality to Complainant's application and the mimicking of the TINDER logo confirms Respondent's full awareness of Complainant's rights. Additionally, until Respondent received Complainant's cease and desist letter, the domain name resolved to a website for an online dating service. This is persuasive evidence that Respondent was aware of Complainant's mark and registered the disputed domain name in bad faith. Avid Dating Life Inc. v. Yakov Rossman / WhoisGuard Protected, WIPO Case No. D2014-0485 (finding bad faith registration where Respondent incorporated a well-known trademark associated with a dating website into a domain name that resolved to another dating site).
The Panel also finds that there was bad faith use. The Panel finds that Respondent's use of the disputed domain name in connection with a website that offered features free of charge that, in Complainant's official application, are only available to paying users, is disruptive of Complainant's business.
Accordingly, the Panel finds that Complainant has carried its burden and satisfied paragraph 4(a)(iii) of the Policy with respect to the disputed domain name.
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 <tinderplusplus.com> be transferred to Complainant.
Lawrence K. Nodine
Date: February 20, 2017