ADMINISTRATIVE PANEL DECISION
Deus Communication v. UAB Novabrand / UAB Novabrabnd, DKD Dating Network c/o Lithuanian, USA and Russian Joint Venture JSC DKD
Case No. D2018-2863
1. The Parties
Complainant is Deus Communication of Boulogne-Billancourt, France, represented by Deleporte Wentz Avocat, France.
Respondents are UAB Novabrand / UAB Novabrabnd and DKD Dating Network c/o Lithuanian, USA and Russian Joint Venture JSC DKD, of Visaginas, Lithuania.
2. The Domain Name and Registrar
The disputed domain name <gaymec.info> (the “Domain Name”) is registered with Crazy Domains FZ-LLC (the “Registrar”).
3. Procedural History
The Complaint was filed in French with the WIPO Arbitration and Mediation Center (the “Center”) on December 17, 2018. On December 17, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 21, 2018, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. On December 21, 2018, the Center notified the Parties in both English and French that the language of the Registration Agreement for the disputed domain name was English. Complainant filed an amended Complaint in English on December 23, 2018. Moreover, Complainant filed an amendment to the Complaint on January 2, 2019.
The Center verified that the Complaint together with the amended Complaint and the amendment to 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 Respondents of the Complaint, and the proceedings commenced on January 4, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 24, 2019. Respondents did not submit any response. Accordingly, the Center notified Respondents’ default on January 25, 2019.
The Center appointed Robert A. Badgley as the sole panelist in this matter on February 12, 2019. 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, based in France, operates an online “dating site for adults” in the French language. Complainant does so via the trademark GAYMEC, registered in France in March 2005 (registration No. 3350970) and July 2010 (registration No. 9243601). Complainant uses the domain names <gaymec.com> and <gaymec.fr> for this dating website.
The Domain Name was registered on January 6, 2015. Respondent UAB Novabrand is the registrant and, according to Complainant, Respondent DKD Dating Network has been authorized by UAB Novabrand to use the Domain Name to operate a dating website. Both Respondents share the same physical address in Lithuania.
The Domain Name does not currently resolve to an active website. At some point, however, the Domain Name resolved to a website – in the French language – purporting to offer various gay dating services.
In October and November 2018, Complainant sent letters to Respondents regarding the latters’ allegedly infringing registration and use of the Domain Name. According to the Complaint, there was no response to these letters.
5. Parties’ Contentions
Complainant asserts that it has established the three elements required under the Policy for a transfer of the Domain Name.
Respondents have not replied to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel concludes that Complainant has rights in the mark GAYMEC through demonstrated registration and use. The Panel also finds the Domain Name to be identical to the mark.
Complainant has established Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel concludes that Respondents have no rights or legitimate interests in respect of the Domain Name. Respondents have not come forward, either in response to Complainant’s pre-Complaint correspondence or in response to the Complaint itself, to explain their bona fides in connection with the Domain Name. It is undisputed in the record that Complainant did not authorize Respondents to use the GAYMEC mark in any manner. Respondents’ use of the Domain Name to host a dating website and thereby trade on the renown of Complainant’s registered GAYMEC mark is clearly not legitimate. Further, Respondents cannot become commonly known by the Domain Name if its adoption and use is for the purpose of trading on the strength of the Complainant’s trademark, which the Panel finds convincing on the unrebutted evidence supplied in this case.
Complainant has established Policy paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondents have registered and used the Domain Name in bad faith. The Panel finds it more likely than not that Respondents had Complainant’s mark in mind when registering the Domain Name. This fact seems highly probable because Respondents purport to operate a website offering essentially the same services as Complainant and targeting the same Internet users, namely, French speakers. Moreover, Respondents have not denied, either prior to the filing of the Complaint in this proceeding or in response to the Complaint, knowledge of the GAYMEC mark at the time the Domain Name was registered.
The Panel finds on this record that Respondents have used the Domain Name in bad faith within the meaning of the above-quoted Policy paragraph 4(b)(iv). It seems fairly clear that Respondents are seeking to impersonate Complainant and thereby divert Internet traffic otherwise destined for Complainant’s site.
Complainant has established Policy paragraph 4(a)(iii).
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <gaymec.info> be transferred to Complainant.
Robert A. Badgley
Date: February 14, 2019