Spark Networks Services GmbH v. Alan Buchanan
Claim Number: FA2012001925911
Complainant is Spark Networks Services GmbH (“Complainant”), represented by Fabricio Vayra of Perkins Coie LLP, District of Columbia, USA. Respondent is Alan Buchanan (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <silversingles.dating>, registered with NameCheap, 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.
Dennis A. Foster as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 21, 2020; the Forum received payment on December 21, 2020.
On December 22, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <silversingles.dating> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 28, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 19, 2021 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@silversingles.dating. Also on December 28, 2020, 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.
A timely Response was received and determined to be complete on January 8, 2021.
On January 13, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dennis A. Foster 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 Uniform Domain Name Dispute Resolution Policy (the "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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a leading global dating company that provides numerous online dating services and apps. With over one million monthly paying subscribers, Complainant is the second largest publicly listed dating company in the world and does business under the SILVER SINGLES service mark, which it has registered with the United States Patent and Trademark Office (“USPTO”).
The disputed domain name, <silversingles.dating>, is confusingly similar to Complainant’s sevice mark as it incorporates the mark in its entirety and adds the “.dating” descriptive generic top-level domain (“gTLD”) to the end of the mark. That gTLD even increases confusion because it relates directly to services offered by Complainant.
Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its SILVER SINGLES mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead passes itself off as Complainant and offers competing dating services on the disputed domain name’s website.
Respondent registered and uses the disputed domain name in bad faith. Respondent engages in a pattern of bad faith registration as it holds other competing domain names. Respondent disrupts Complainant’s business for commercial gain by passing itself off as Complainant and offering competing dating services on the disputed domain name’s resolving website. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the SILVER SINGLES mark.
B. Respondent
Respondent states that he did not know that SILVER SINGLES was trademarked.
Complainant is a globally-known dating company that provides online dating services and apps. Complainant sells services in connection with its SILVER SINGLES service mark, which it has registered with the USPTO (Reg. 3,053,126; registered Jan. 31, 2006).
Respondent registered and owns the disputed domain name, <silversingles.dating>, which was registered on Oct. 8, 2020. The disputed domain name is used to host a website that offers online dating services.
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 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) the 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.
Complainant contends that the disputed domain name, <silversingles.dating>, is confusingly similar to the SILVER SINGLES mark. The disputed domain name incorporates Complainant’s mark in its entirety, except for deletion of the blank space between the two terms in the mark, and adds the “.dating” gTLD. Generally, the Panel would not consider the gTLD in its analysis of similarity, but, in this case, similarity and even identity are enhanced by this gTLD because it describes the services that Complainant offers on its own website. As a result, the Panel believes that the disputed domain name, <silversingles.dating>, is not only confusingly similar, but is identical, to Complainant’s SILVER SINGLES service mark. See Altria Group, Inc. v. xiazihong, FA 1732665 (Forum July 1, 2017) (“Appending a top-level domain that describes a complainant’s business adds to confusing similarity.”); see also Hannover v. Hyungki Ryu, FA 102724 (Forum Jan. 7, 2001) (“The disputed domain name <hannoverre.com> is identical to Complainant’s HANNOVER RE mark, as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names.”).
Therefore, the Panel finds that Complainant has proved that the disputed domain name is identical or confusingly similar to a service mark in which Complainant has rights.
The Panel notes that, under Policy ¶ 4(a)(ii), Complainant must first make a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name, then the burden shifts to Respondent to show that it does have rights or legitimate interests. See Neal & Massey Holdings Ltd. v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights [or] legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant has established that the disputed domain name is identical to Complainant’s SILVER SINGLES service mark, and has plainly asserted that Complainant has neither authorized nor licensed Respondent to use that mark.
Accordingly, the Panel determines that Complainant has sustained a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name.
Since the thread-bare Response offers no rebuttal whatsoever to Complainant’s prima facie case, the Panel must look elsewhere in the record to determine whether there is any feasible rebuttal. In doing so, the Panel will draw conclusions and inferences from the evidence as are pertinent and appropriate. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition), section 2.1 (“The panel may draw inferences from the absence of a response as it considers appropriate, but will weigh all available evidence irrespective of whether a response is filed.”).
In examining the record in this case relative to Policy ¶ 4(c), which provides three avenues that could sustain a respondent rebuttal, the Panel can find no applicability. Policy ¶ 4(c)(i) or (iii) might apply if the disputed domain name was being used either in connection with a “bona fide offering of goods or services,” or in a “legitimate noncommercial or fair use” manner. However, the Panel accepts the Complainant’s contentions, aptly supported by evidence presented in the Complaint, that the disputed domain name resolves to a website that is passed off as belonging to Complainant and proceeds to offer competing dating services. The Panel concludes that that usage does not fit within the parameters described in Policy ¶ 4(c)(i) or (iii). See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”); see also iFinex Inc. v. xu shuaiwe, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s [disputed] domain name directs internet users to a competing website [...] Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).”)
The Complainant argues that Respondent is not commonly known by the disputed domain name. The Panel accepts this argument as it finds no reason to believe that Respondent, Alan Buchanan, would be commonly known as <silversingles.dating>. Consequently, the Panel determines that Policy ¶ 4(c)(ii) does not apply to this case.
With Policy ¶ 4(c) rendered inapplicable, and detecting no other evidence in the record to support Respondent’s position, the Panel finds Complainant’s prima facie case to be conclusive as to this element required under the Policy.
Accordingly, the Panel finds that Complainant has demonstrated that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant contends that Respondent registered and uses the disputed domain name for bad faith disruption of Complainant’s business per Policy ¶ 4(b)(iii), as Respondent is passing himself off as Complainant to divert unknowing internet users to the disputed domain name’s website where Respondent offers competing services for commercial gain. The Panel is inclined to agree with Complainant, since Respondent is clearly a competitor of Complainant and such commercial gain would likely have inured to Complainant’s benefit and enhanced its business operations. See Travellers Exchange Corp. Ltd. v. Travelex Forex Money Changer, D2011-1364 (Wipo Oct. 3, 2011) (“The Panel concludes that Respondent is seeking to disrupt the business of a competitor, Complainant, by offering at its website the very services Complainant has offered...”); see also DatingDirect.com Ltd. v. Wayne Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant also contends that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv), given that the commercial gain referred to above results from the intended confusion between the disputed domain name and Complainant’s service mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website. Again, the Panel agrees with Complainant’s analysis and finds that the disputed domain name was registered and is being used in bad faith in accordance with Policy ¶ 4(b)(iv). See Xylem Inc. v. YinSi BaoHu. FA 1612750 (May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s implies intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also Citadel LLC v. Joel Lespinasse, FA 1579141 (Forum Oct. 15, 2014).
As a result, the Panel finds that Complainant has shown that the disputed domain name has been registered and is being used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <silversingles.dating> domain name be TRANSFERRED from Respondent to Complainant.
Dennis A. Foster, Panelist
Dated: January 25, 2021
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