Tinder, Inc. v. Pablo Maricia
Claim Number: FA1606001679467
Complainant is Tinder, Inc. (“Complainant”), represented by Jason E. Mueller of Locke Lord LLP, Texas, USA. Respondent is Pablo Maricia (“Respondent”), Tunisia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gotinder.us>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 14, 2016; the Forum received payment on June 14, 2016.
On Jun 15, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <gotinder.us> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On June 16, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 2016 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@gotinder.us. Also on June 16, 2016, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 29, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy ("Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the TINDER mark to operate an online dating service. Complainant has registered the TINDER mark with the likes of the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,479,131, registered Feb. 4, 2014), which demonstrates its rights in the mark. See Compl., at Attached Annex 1. The <gotinder.us> domain name is confusingly similar to the TINDER mark as the domain name incorporates the mark entirely, while adding the generic term “go”, and affixing the “.us” country-code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <gotinder.us> domain name. Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to register any variant of TINDER in a domain name per Policy ¶ 4(c)(iii). Nothing in the available evidence indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). Further, Respondent is not making a bona fide offering of goods or services via the disputed domain name, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) and (iv), respectively. Instead, the disputed domain name redirects to the <adultfriendfinder.com>, a webpage which directly competes with Complainant. See Compl., at Attached Annex 6.
Respondent registered or has used the disputed domain name in bad faith. Respondent has used the disputed domain to operate a domain which redirects Internet users to a competitor of Complainant, presumably for financial gain, supporting a finding of Policy ¶ 4(b)(iv) bad faith. See Compl., at Attached Annex 6. Respondent had constructive knowledge of Complainant’s rights in the TINDER mark by virtue of its USPTO registration. Finally, upon receiving a cease and desist letter from Complainant, Respondent changed the registrant information in an attempt to mask its true identity.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on June 20, 2015.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds that the disputed domain name is confusingly similar to valid and subsisting trademark TINDER. The Complainant has adequately pled its interests in this trademark. The Respondent arrives at the disputed domain name by merely adding the generic word “go” to the beginning of the mark and appending the suffix ccTLD “.us” to the end. This is insufficient to distinguish the disputed domain name from the registered trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark TINDER.
The Panel further finds that the Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent apparently is not commonly known by the <gotinder.us> domain name because it is not permitted to use the TINDER mark. Complainant does not specifically argue, but the Panel notes that Respondent is identified by the available WHOIS information as “Pablo Maricia.” Accordingly, the Panel finds that Respondent is not commonly known by the <gotinder.us> domain name.
Respondent also apparently fails to use the <gotinder.us> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the disputed domain name redirects to the website of a competitor <adultfriendfinder.com>. Complainant has provided, in its Exhibit 6, a screenshot showing the resolving webpage for <gotinder.us>. The Panel finds that Respondent fails to use the <gotinder.us> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(ii) and Policy ¶ 4(c)(iv).
Complainant maintains that Respondent uses the <gotinder.us> domain name in bad faith because the resolving website is used to attract Internet users for commercial gain. Complainant has provided, in its Exhibit 6, a screenshot of the resolving AdultFriendFinder website. The Panel finds that Respondent uses the <gotinder.us> domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Gardens Alive, Inc. v. D&S Linx, FA 203126 (Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”).
Complainant asserts that its trademark registrations for the TINDER mark existed well before the registration of the disputed domain name. Complainant argues that Respondent has constructive knowledge of Complainant's rights in the mark. While panels have concluded that constructive notice is not sufficient to support a bad faith finding, the Panel finds that, due to the fame of Complainant's mark and the totality of the circumstances, Respondent had actual knowledge of the mark and Complainant's rights. Thus, the Panel finds that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <gotinder.us> domain name be transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: July 30, 2016
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