Westmore · UDRP DecisionAshleymadisonspain.com
The Panel ordered transfer of <ashleymadisonspain.com>. It found the domain confusingly similar to Complainant’s registered ASHLEY MADISON mark because it incorporated the mark and merely added the geographically descriptive term “Spain.” Respondent’s use of the domain to link to competing third-party websites did not establish rights or legitimate interests. The same use, the nature of the domain and links, knowledge of Complainant’s prior rights, and evidence of Respondent’s pattern of registering domains incorporating third-party marks supported findings of registration and use in bad faith.
The timeline behind ashleymadisonspain.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind ashleymadisonspain.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates a conventional trademark-plus-geography dispute in which the geographic addition increased rather than dispelled the suggestion of an official localized service. Competing-link use, an unanswered prima facie case, knowledge inferred from the domain and its use, and documented prior UDRP decisions combined to satisfy all three UDRP elements.
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. Hush Whois Protection Ltd. Case No. D2019-2430 1. The Parties Complainant is Ruby Life Inc., Canada, represented by SafeNames Ltd., United Kingdom. Respondent is Hush Whois Protection Ltd., Seychelles. 2. The Domain Name and Registrar The disputed domain name <ashleymadisonspain.com> is registered with PSI-USA, Inc. dba Domain Robot (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 7, 2019. On October 8, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 10, 2019, 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 14, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 3, 2019. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 4, 2019. The Center appointed Lorelei Ritchie as the sole panelist in this matter on November 14, 2019. 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 Since 2002, Complainant has owned and operated an online dating platform under the mark ASHLEY MADISON, via its website, located at “www.ashleymadison.com”. Complainant advertises “discreet relationships of all kinds,” and has members in over 50 countries around the world. Complainant owns trademark registrations for the ASHLEY MADISON mark in various jurisdictions. These include United States Registration No. 2812950 (registered February 10, 2004); Canadian Registration No. TMA592582 (registered October 20, 2003); and European Union Registration No. 007047764 (registered October 13, 2009). Complainant also advertises its services via various social media platforms, including Facebook, Twitter, and YouTube. The disputed domain name <ashleymadisonspain.com> was registered on November 16, 2016. Respondent has no affiliation with Complainant. Respondent has used the URL associated with the disputed domain name to provide links to competing third-party websites. Complainant has not authorized any activities by Respondent, nor any use of its trademarks thereby. 5. Parties’ Contentions A. Complainant Complainant contends that (i) the disputed domain name <ashleymadisonspain.com> is identical or confusingly similar to Complainant’s trademarks; (ii) Respondent has no rights or legitimate interests in the disputed domain name; and (iii) Respondent registered and is using the disputed domain name in bad faith. In particular, Complainant contends that its ASHLEY MADISON mark is known globally for discreet dating services. Complainant further contends that it has trademark registrations in various jurisdictions for the ASHLEY MADISON mark. Complainant further contends that Respondent has no rights or legitimate interests in the domain name registration or use of the disputed domain name. Rather, Complainant contends that Respondent has acted in bad faith, using the disputed domain name to link to competing third-party websites. B. Respondent Respondent did not file a reply to Complainant’s contentions in this proceeding. 6. Discussion and Findings A. Identical or Confusingly Similar This Panel must first determine whether the disputed domain name <ashleymadisonspain.com> is identical or confusingly similar to a trademark or service mark in which Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. The Panel finds that it is. The disputed domain name directly incorporates Complainant’s registered trademark ASHLEY MADISON, and merely adds the geographically descriptive term “Spain.” Complainant’s trademark is clearly recognized in the disputed domain name. Numerous UDRP panels have agreed that supplementing or modifying a trademark with generic or descriptive words, including geographically descriptive wording, does not make a domain name any less “identical or confusingly similar” for purposes of satisfying this first prong of paragraph 4(a)(i) of the Policy. See, for example, Inter-IKEA v. Polanski , WIPO Case No. D2000-1614 (transferring <ikeausa.com>); General Electric Company v. Recruiters , WIPO Case No. D2007-0584 (transferring <ge-recruiting.com>); Microsoft Corporation v. StepWeb , WIPO Case No. D2000-1500 (transferring <microsofthome.com>); CBS Broadcasting, Inc. v. Y2K Concepts Corp. , WIPO Case No. D2000-1065 (transferring <cbsone.com>). See also Section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Third Edition (“WIPO Overview 3.0”). The Panel therefore finds that the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Policy provides some guidance to respondents on how to demonstrate rights or legitimate interests in the domain name at issue in a UDRP dispute. For example, paragraph 4(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name “in connection with a bona fide offering of goods or services”; (ii) demonstration that Respondent has been “commonly known by the domain name”; or (iii) “legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”. Respondent did not submit a reply to the Complaint, however. Rather, as mentioned in Section 4 of this Panel’s decision, Respondent has used the disputed domain name to link to competing third-party websites. Accordingly, the Panel finds that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name, which Respondent has not rebutted. Therefore, the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith There are several ways that a complainant can demonstrate that a domain name was registered and used in bad faith. For example, paragraph 4(b)(iv) of the Policy states that bad faith can be shown where “by using the domain name [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] website or location or of a product or service on [the] web site or location”. As noted in Section 4 of this Panel’s decision, Respondent has used the disputed domain name to link to competing third-party websites, presumably for Respondent’s own commercial gain. Moreover, the Panel finds that the added term “spain” in the disputed domain name would be perceived by Internet users as descriptive of a website where they could information about , or get access to, Complainant’s services in Spain. Given the nature of the disputed domain name and of the links, as well as the global nature of Complainant’s mark, the Panel finds that Respondent registered and used the disputed domain name with knowledge of Complainant’s prior rights, thereby evidencing bad faith. Complainant has further submitted evidence that Respondent has engaged in a pattern of registering domain names that incorporate others’ marks, which also evidences bad faith in accordance with paragraph 4(b)(ii). In this regard, Complainant points to prior UDRP cases finding that Respondent has acted in bad faith. These include Amundi Asset Management v. Domain Admin, Hush Whois Protection Ltd. , WIPO Case No. D2019-1494 (transferring <amoundi-ee.com>); G4S Plc v. Domain Admin, Hush Whois Protection Ltd. , WIPO Case No. D2018-2551 (transferring <g4susa.com>); and Yamaha Motor Corporation, U.S.A. v. Domain Admin, Hush Whois Protection Ltd. , WIPO Case No. D2018-1359 (transferring <yamaha-motors.com>). Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith in accordance with paragraph 4(a)(iii) of the Policy. 7. Decision For all 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 <ashleymadisonspain.com> be transferred to Complainant. Lorelei Ritchie Sole Panelist Dated: November 28, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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