Westmore · UDRP DecisionAshleymadison2.com
The Panel ordered transfer of <ashleymadison2.com>. It found the domain confusingly similar to Complainant’s ASHLEY MADISON mark because it incorporated the mark in full and added only the non-distinctive numeral “2.” Respondent had no rights or legitimate interests because the domain redirected users to pornographic content rather than supporting a bona fide use. Registration and use in bad faith were established from Respondent’s adoption of the famous mark and use of the domain to attract users to a commercially oriented pornographic website, which the Panel characterized as pornosquatting.
The timeline behind ashleymadison2.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
The decision is a clear example of a panel treating the complete incorporation of a famous mark, combined with pornographic diversion and commercial registration prompts, as evidence across all three UDRP elements. It is also notable that the numeral “2” increased rather than reduced confusion because it implied another version of the trademark owner’s service.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Ruby Life Inc. v. Alexander Varkov Case No. D2017-1895 1. The Parties Complainant is Ruby Life Inc. of Toronto, Canada, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland (“UK”). Respondent is Alexander Varkov of Nikolaev, Ukraine. 2. The Domain Name and Registrar The disputed domain name <ashleymadison2.com> is registered with Internet Domain Service BS Corp (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 28, 2017. On September 28, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 2, 2017, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that 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 Respondent of the Complaint, and the proceedings commenced on October 5, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 25, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 26, 2017. The Center appointed Lawrence K. Nodine as the sole panelist in this matter on November 16, 2017. 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 offers online dating services under various brands, including ASHLEY MADISON. Complainant operates the website “www.ashleymadison.com” (registered on November 13, 2001), which provides dating services to “unhappy individuals who are looking to have an affair.” Complainant’s website is accessible in the United States of America (“United States”) and in over fifty other countries worldwide, including Ukraine and its neighboring countries Belarus, Russian Federation, Poland, Slovakia, and Hungary. Complainant has registered the mark ASHLEY MADISON in various jurisdictions, including in the United States (registered on February 10, 2004; Reg. No. 2812950) and in the European Union (registered on October 13, 2009; Reg. No. 007047764). The services offered under the ASHLEY MADISON brand have garnered extensive media coverage over the past few years and Complainant’s website has several million members. Respondent registered the disputed domain name <ashleymadison2.com> on March 30, 2017. At least as of September 25, 2017, the disputed domain name redirected users to a URL ( e.g ., “www.vjzxo.social-hookup.com”) for a website featuring pornographic content and purporting to be voted the UK’s number one dating site in 2015. The website urged users to register to view additional pornographic content and to “meet hot women ASAP”. 5. Parties’ Contentions A. Complainant Complainant asserts that the disputed domain name is confusingly similar to the trademark in which it has rights because the disputed domain name incorporates the trademark in its entirety. According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name because he is not associated with Complainant and has made unauthorized use of Complainant’s mark to redirect users to websites offering pornographic content and profit from the brand value associated with ASHLEY MADISON. Complainant also contends that Respondent registered and used the disputed domain name in bad faith because, considering the worldwide reputation of the ASHLEY MADISON mark, it is reasonable to infer that Respondent chose to adopt the confusingly similar <ashleymadison2.com> to take advantage of the mark’s popularity for the purposes of pornosquatting. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Panel finds that Complainant’s trademark registrations prove that it has rights in the ASHLEY MADISON mark and that the disputed domain name is confusingly similar to Complainant’s mark. The disputed domain name incorporates ASHLEY MADISON in its entirety. The addition of the non-distinctive “2” exacerbates the confusion as it suggests that the disputed domain name is another iteration of its services. Complainant satisfies paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Complainant has established a prima facie case that Respondent has no rights or legitimate interest in the disputed domain name. Respondent has failed to respond and carry his burden to offer evidence in rebuttal. Respondent’s use of the disputed domain name is not bona fide . The disputed domain name redirects users to a different URL offering pornographic content, evidencing Respondent’s attempt to bait users by taking advantage of the recognition that Complainant’s mark enjoys. Accordingly, the Panel finds that paragraph 4(a)(ii) of the Policy is satisfied. C. Registered and Used in Bad Faith Respondent registered and is using the disputed domain name in bad faith. Considering the famous nature of the mark and the notoriety or the services offered under the ASHLEY MADISON brand, it is reasonable to assume that Respondent was aware of Complainant’s mark and rights. Indeed, Respondent’s wholesale adoption of the mark shows his awareness of Complainant’s mark and evidences his bad faith registration. Respondent also uses the disputed domain name in bad faith. The disputed domain name redirects users to a pornographic website that urge users to register to access further services, which underscores the commercial nature of the website. Thus, Respondent has engaged in pornosquatting. See Prada S.A. v. Roberto Baggio , WIPO Case No. D2009-1187 (describing pornosquatting as the practice where “confusion with a well-known trademark is used to divert customers to a pornographic website for commercial purposesˮ). The Panel therefore finds that Complainant has established paragraph 4(a)(iii) of the Policy. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <ashleymadison2.com> be transferred to Complainant. Lawrence K. Nodine Sole Panelist Date: November 30, 2017
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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