“Any associated with the after circumstances, in specific but without limitation, if discovered by the Panel to be proved according to its assessment of all proof presented, shall demonstrate your liberties or genuine passions to your website name for purposes of paragraph 4(a)(ii):
(i) before any notice for your requirements associated with the dispute, your usage of, or demonstrable preparations to utilize, the website name or a name corresponding to your domain title relating to a bona offering that is fide of or solutions; or
(ii) you (as a person, company, or any other company) have now been commonly known by the domain title, even although you have actually obtained no trademark or solution mark rights; or
(iii) you’re making a genuine noncommercial or fair utilization of the website name, without intent for commercial gain to misleadingly divert customers or even to tarnish the trademark or solution mark at issue”.
The consensus of past choices underneath the Policy is the fact that a complainant might establish this element by making down a prima facie instance, perhaps perhaps maybe not rebutted because of the respondent,
That the respondent does not have any legal rights or genuine interests in a domain name. Where in actuality the panel discovers that a complainant has made down such a prima facie instance, the responsibility of manufacturing changes to your respondent to create evidence that is forward of legal rights or genuine passions.
The Panel is pleased that the Complainant has made out of the necessity prima facie instance centered on its submissions that the Respondent is certainly not associated with or endorsed by the Complainant, just isn’t certified or authorized to utilize its subscribed markings, just isn’t popularly known as “tender” and it is with the disputed domain title to point to a dating internet site which could recommend to site site visitors that the Respondent is the Complainant or is affiliated therewith. The Panel turns to the Respondent’s submissions and evidence to determine whether its case is capable of rebutting such prima facie case in these circumstances.
Whilst the reaction is certainly not straight addressed into the conditions associated with the Policy, its clear towards the Panel that the Respondent effortlessly seeks to activate paragraph 4(c)(i) associated with the Policy for the reason that it claims to possess utilized the disputed website name associated with a real offering of online dating services and, by doing this, is just making a appropriate descriptive utilization of the dictionary term “tender” into the domain name that is disputed. The key to whether or perhaps not the Respondent’s company does represent such a bona fide providing when it comes to purposes of paragraphs 4(a)(ii) and 4(c)(i) for the Policy may be the Respondent’s motivation in registering the domain name that is disputed. To phrase it differently, did the Respondent register it to make use of the reality because it is a word describing the activity of dating that it is confusingly similar to the TINDER trademark or, as the Respondent claims? This question may readily be answered by the presence of meta tags on the Respondent’s website containing other trademarks of the Complainant and its affiliates, namely, MATCH, PLENTY OF FISH and POF in the Panel’s opinion. Such existence shows in mind to exploit certain well-known trademarks of competing dating service providers in connection with attracting traffic to its website that it is more probable than not that the Respondent had it. This unavoidably taints the Respondent’s assertion that it registered the disputed domain name purely in association with an alleged descriptive term “tender singles” and without reference to the Complainant’s TINDER trademark in the Panel’s view.
The Respondent answers this problem by pointing away that the phrase “match” is a dictionary term, “plenty of fish” is really a well-known expression and “tender”, as included in the disputed website name as opposed to the meta tags, is itself a dictionary term. The issue using this assertion but is the fact that MATCH and TINDER are well-known trademarks associated with Complainant and its own affiliates, as is sufficient OF FISH, and all sorts of of those marks are registered and utilized regarding the online dating services comparable to that purporting become operated by the Respondent. Moreover, the Respondent doesn’t have answer that is similar the current presence of the POF trademark which will not fit having its argument associated with usage of dictionary terms and expressions unrelated to your trademark value. Up against the extra weight of proof of usage of trademark terms it really is not really legitimate for the Respondent to argue that its tasks relate solely to a solely descriptive utilization of the word “tender”.
Before making the main topics the meta tags, the Panel records for completeness so it doesn’t accept the Respondent’s assertion that there’s fundamentally any qualitative distinction between the lack of the term “tinder” from the meta tags plus the existence of this term “tender” into the disputed website name. There was evidence that is sufficient of usage of terms other than “tinder” due to their trademark value within the meta tags to question the Respondent’s protestations it is just concerned with dictionary definitions.
Looking at the Respondent’s particular assertion it has liberties and genuine passions in a website name made up of a phrase that is dictionary
Part 2.10.1 of this WIPO Overview 3.0 notes the opinion view of panels underneath the Policy that merely registering a website name composed of a dictionary term or expression will not by itself confer rights or genuine passions. The part adds that the website name should always be truly used or demonstrably meant for used in connection with the relied upon dictionary meaning rather than to trade down party that is third legal rights. The Panel doubts whether it could realistically be seen as a common dictionary phrase which is genuinely being used in connection with the relied upon dictionary meaning in the present case, considering the term “tender singles”, the manner of its use and the lengthy and somewhat tortuous explanations by the Respondent as to its alleged descriptiveness. The Panel need look no further than the presence of the third party trademarks in the Respondent’s meta tags to dispose of any suggestion that the term is not being used to trade off third party trademark rights in any event.
Area 2.10.1 for the WIPO Overview 3.0 continues on to remember that Panels additionally tend to check out facets including the status and popularity associated with mark that is relevant perhaps the Respondent has down dating registered and legitimately utilized other names of domain containing such terms or expressions. Right right Here, the Respondent’s instance needs to be seen within the context of this undeniable status and fame associated with the Complainant’s TINDER mark in line with the proof prior to the Panel. Such mark is incredibly well-known and commonly thought as related to online dating services much like those that the Respondent claims to supply. This element on its very own shows that the Respondent could perhaps perhaps maybe not establish legal rights and genuine passions within the term “tender” or “tender singles” by virtue of a claim towards the dictionary meaning.
The Respondent has reported so it has registered and legitimately utilized other domain names containing comparable words that are allegedly descriptive phrases.
Nonetheless, it’s opted for to not share details inside the context for the current proceeding that is administrative. The Respondent proposes to reveal these in the event that situation is withdrawn against it. This is simply not one thing to which any complainant could possibly be fairly likely to consent when it doesn’t understand what record contains, nor will there be any framework set straight down because of the Policy for this type of disclosure that is conditional. The point is, also had the Respondent disclosed a summary of names of domain associated with sort which it asserts so it has registered, the Panel doubts that this could fundamentally have modified its summary because of the popularity associated with Complainant’s TINDER mark, its closeness in features to the 2nd amount of the domain that is disputed as well as the proven fact that the Respondent has utilized terms focusing on other trademarks associated with the Complainant or its affiliates with its meta data.
The Panel finds that the Respondent has failed to rebut the Complainant’s prima facie case that it has no rights and legitimate interests in the disputed domain name and accordingly that the Complainant has met the test under the second element of the Policy in all of these circumstances.