Match Group, LLC v. Echo Xia
Claim Number: FA1709001749968
Complainant is Match Group, LLC (“Complainant”), represented by Jason E. Mueller of LOCKE LORD LLP, Texas, USA. Respondent is Echo Xia (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tinderdating.us>, registered with Name.com, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 20, 2017; the Forum received payment on September 20, 2017.
On Sep 20, 2017, Name.com, Inc. confirmed by e-mail to the Forum that the <tinderdating.us> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties n accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”)
On September 22, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 12, 2017 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@tinderdating.us. Also on September 22, 2017, 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 October 16, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the National Arbitration 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, Match Group LLC (formerly Match.com LLC), is in the business of providing online dating services. In connection with this business, Complainant uses the TINDER mark to operate and market for its online and mobile dating application services. Complainant has rights in the TINDER mark based upon multiple registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,479,131, registered Feb. 4, 2014). Complainant has developed substantial rights and goodwill in the mark as a result of its extensive marketing efforts, continuous use, and over 50 million users. Respondent’s <tinderdating.us> domain name is confusingly similar to the TINDER mark, as the domain name incorporates the mark entirely, in addition to the descriptive term “dating,” along with the “.us” country-code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <tinderdating.us> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to register any variant of the TINDER mark in a domain name per Policy ¶4(c)(iii). Nothing in the available evidence indicates 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 resolves to a page upon which Respondent attempts to pass itself off as Complainant by appearing to host a competing online dating service. Internet users clicking a link on the website are redirected to a competing dating and match-making service.
Respondent has registered or used the <tinderdating.us> domain name in bad faith. Respondent registered a similar domain name <tinder-dating.com>, which indicates a pattern of bad faith registration as described in Policy ¶ 4(b)(ii). Respondent also uses the disputed domain name to attract Internet users by creating confusion with Complainant’s famous mark and redirect those users to a competing website, indicating Policy ¶¶ 4(b)(iii) and (iv) bad faith. Further, Respondent clearly registered the disputed domain name with constructive and actual knowledge of Complainant and its rights in the TINDER mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <tinderdating.us> 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 or 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 (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.”).
Complainant claims rights in the TINDER mark based upon registration of the mark with the USPTO (e.g. Reg. No. 4,479,131, registered Feb. 4, 2014). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel holds that Complainant’s registration of the TINDER mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next claims Respondent’s <tinderdating.us> is confusingly similar to the TINDER mark, as the domain name consists of the mark in its entirety, the descriptive term “dating,” and the “.us” ccTLD. The addition of a term descriptive of a complainant’s business and the “.us” ccTLD to a mark in order to form a domain name does not sufficiently distinguish the resultant domain name from the mark in a Policy ¶ 4(a)(i) analysis. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark); see also Lockheed Martin Corp. v. Roberson, FA 323762 (Forum Oct. 19, 2004) (holding that the ccTLD “.us” does not differentiate the disputed domain name from Complainant’s mark). The Panel finds the <tinderdating.us> domain name is confusingly similar to Complainant’s TINDER mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the <tinderdating.us> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the TINDER mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under [Policy ¶ 4(c)(iii)], as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record identifies Respondent as “Echo Xia.” Additionally, lack of evidence in the record to indicate that the respondent had been authorized to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in said domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel finds under Policy ¶ 4(c)(iii) that Respondent has not been commonly known by the <tinderdating.us> domain name.
The Panel agrees that there is nothing in the available evidence which indicates that Respondent has rights in a mark identical to the <tinderdating.us> domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore, the Panel concludes that Respondent has failed to demonstrate rights or legitimate interests in the domain name per Policy ¶ 4(c)(i).
Complainant further argues Respondent’s lack of rights or legitimate interests in the <tinderdating.us> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends that Respondent uses the domain name to pass itself off as Complainant to compete with Complainant and divert Internet users to a competitor of Complainant’s business. Such use is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(ii) or (iv). See Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panellist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”); see also United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶ [4(c)(ii)] nor a legitimate noncommercial or fair use pursuant to Policy ¶ [4(c)(iv)].”). Respondent’s <tinderdating.us> resolves to a website which makes use of the TINDER mark and purports to offer online dating and match-making services. Internet users clicking one of the links are redirected to <millionairematch.com>, the domain for a competitor of Complainant’s business. The Panel finds Respondent lacks rights and legitimate interests per Policy ¶¶ 4(c)(ii) and (iv).
Complainant has proved this element.
Complainant contends Respondent’s registration of <tinderdating.us> is part of a pattern of bad faith registrations targeting Complainant and its TINDER mark. A showing that a respondent has registered multiple domain names targeting the same mark can support a finding of bad faith per Policy ¶ 4(b)(ii). See Microsoft Corporation and Skype v. zhong biao zhang / Unknown company / zhong zhang, FA1401001538218 (Forum Feb. 20, 2014) (holding that the respondent’s registration of three domain names incorporating variants of the complainant’s SKYPE mark reflected a pattern of bad faith registration under Policy ¶ 4(b)(ii)). Complainant contends that Respondent registered a similar domain name, <tinder-dating.com>, within eight days of registering the <tinderdating.us> domain name. The Panel agrees this constitutes a pattern of bad faith registration per Policy ¶ 4(b)(ii).
Complainant also contends that Respondent uses the <tinderdating.us> domain name to attract Internet users by creating confusion with the famous TINDER mark and redirects those users to a website which competes with Complainant’s business. Such use can indicate Policy ¶¶ 4(b)(iii) and (iv) bad faith. See Univ. of Texas Sys. v. Smith, FA 1195696 (Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”). Respondent appears to use the domain name to host a competing dating website, but actually diverts users to a competitor’s website. The Panel finds this use amounts to bad faith under to Policy ¶¶ 4(b)(iii) and /or (iv).
Complainant asserts that, due to its list of trademark registrations for—and long use of—the TINDER mark, Respondent must have had constructive knowledge of Complainant's rights in the TINDER mark when Respondent registered the disputed domain name. Complainant further argues that Respondent’s use of the resolving website to purport to offer services in the same industry as Complainant, indicates that Respondent had actual knowledge of Complainant and its rights. The Panel disregards Complainant's arguments concerning constructive knowledge as panels have held that constructive knowledge is not enough evidence of bad faith. See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."). The Panel agrees with Complainant regarding Respondent's actual knowledge, however, and concludes that Respondent registered the <tinderdating.us> domain name in bad faith according to Policy ¶ 4(a)(iii). See Immigration Equality v. Brent, FA 1103571 (Forum Jan. 11, 2008) ("That Respondent proceeded to register a domain name identical to, and with prior knowledge of Complainant's mark is sufficient to prove bad faith registration and use under Policy ¶ 4(a)(iii).").
Complainant has proved this element.
Complainant having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <tinderdating.us> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: October 19, 2017
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