Respondent has utilized the Domain Name and ComplainantвЂ™s Mark to attract, confuse and benefit from online users searching for Complainant. RespondentвЂ™s only utilize associated with the Domain Name is to impersonate Complainant also to attract, confuse and benefit from internet surfers looking for Complainant. It really is clear that Respondent was out for commercial gain.
Respondent designed to prevent Complainant from showing its Mark into the website name, which corresponds to that particular Mark. Respondent had been demonstrably alert to Complainant and its own business when it registered the Domain Name. Respondent should also have known that Complainant would almost certainly have actually wanted to obtain the website name for itself. Respondent registered the website name for the true purpose of unfairly disrupting the continuing business of Complainant by diverting company meant for Complainant. Respondent is a competitor since it provides solutions much like those of Complainant. Respondent ended up being obviously conscious of Complainant and its own company whenever it registered the website name. It really is inconceivable that Respondent intended to use a business that is genuine (or had just about any genuine explanation to make use of) a domain title which comprised a competitorвЂ™s trademark. RespondentвЂ™s website is basically a scheme adopted by Respondent to confuse, attract and make money from online users who’re looking for ComplainantвЂ™s company in the search engines, internet browsers and otherwise on the net also to gain diverting users that are such ComplainantвЂ™s competitors.
It really is clear that Respondent had Complainant and its own company in your mind when registering and with the website name because: Respondent has attempted to impersonate Complainant; Respondent have not denied this assertion; the point in registering / utilizing a domain title comprising the Mark pertaining to adult introduction and swinging services can only have now been to focus on ComplainantвЂ™s business; RespondentвЂ™s internet site includes sources to ComplainantвЂ™s website that is own and Respondent is a competitor of Complainant and ended up being therefore demonstrably aware of Complainant.
Utilization of the Domain title is intended to generate a probability of confusion when you look at the minds of this public as to a link between Respondent and Complainant. It’s apparent that Respondent click here to investiidte was intent upon commercial gain since it provides affiliate links to competitors of Complainant.
Respondent have not taken care of immediately or denied the assertions of bad faith into the pre-action communications by Complainant. It really is reasonable to assume that when Respondent did have purposes that are legitimate registering / utilizing the Domain title it would have stated therefore.
Respondent would not reply to ComplainantвЂ™s contentions.
6. Discussion and Findings
A. Identical or Confusingly Comparable
There’s absolutely no dispute about ComplainantвЂ™s legal rights into the FABSWINGERS Mark. It’s registered in several nations like the United States Patent and Trademark workplace as Registration No. 4033771 plus in the uk as Registration No. 2582868. Therefore, it really is eligible for a presumption of validity.
The website name incorporates in its entirety the FABSWINGERS Mark. Where a domain title incorporates|name that is domain} a complainantвЂ™s mark, this really is adequate to ascertain that the domain title is identical or confusingly comparable for purposes regarding the Policy. See Kabushiki Kaisha Hitachi Seisakusho (d/b/a Hitachi Ltd) v. Arthur Wrangle, WIPO Case No. D2005-1105. The application of the Top-Level that is generic() вЂњonlineвЂќ doesn’t influence the evaluation whether a domain name is identical or confusingly just like a trademark. See, Bradford & Bingley Plc v. Registrant info@fashionID.com 987654321, WIPO Case No. D2002-0499.
When it comes to foregoing reasons, the Panel finds that paragraph 4(a)(i) associated with the Policy happens to be satisfied.
B. Legal rights or Genuine Passions
Complainant contends that Respondent doesn’t have liberties or interests that are legitimate the Domain Name. It really is undisputed that Complainant has not certified or else allowed Respondent to make use of the FABSWINGERS Mark in virtually any manner, including as a domain title. The record evidence suggests that Respondent registered the website name early in the day this current year, well after Complainant had registered liberties in the Mark. Respondent hasn’t supplied any proof developing so it happens to be commonly understood by the website name. Moreover, there isn’t any proof that Respondent is making a bona fide offering of products or solutions, nor the best noncommercial or fair use of the Domain Name insofar as Respondent is utilizing the website name regarding the a web site whereby it really is offering solutions just like those offered by Complainant.
Complainant has made down a prima facie case of RespondentвЂ™s lack of liberties or interests that are legitimate and Respondent has neglected to rebut that case.
When it comes to foregoing reasons, the Panel finds that paragraph 4(a)(ii) regarding the Policy was pleased.
C. Registered and Utilized In Bad Faith
Complainant started dealing beneath the Mark in 2006 when it acquired the assets of a вЂњswingersвЂќ business that has been dealing beneath the Mark. The website name Complainant utilizes, , ended up being registered on September 1, 2006 plus it launched the website that is associated September 23, 2006. The Mark ended up being registered utilizing the United States Patent and Trademark workplace on 4, 2011 and in the United Kingdom in 2009 october. Respondent registered the Domain title on March 8, 2019 вЂ“ well after Complainant established its liberties within the Mark.
Furthermore, Respondent could have had to learn about Complainant in addition to FABSWINGER Mark when registering the Domain Name insofar as on RespondentвЂ™s site from the website name:
(1) the Mark can be used in a lot of places; (2) Respondent sells вЂњswingerвЂќ services that are competitive with those Complainant sells; (3) ComplainantвЂ™s domain title is described twice from the website including a part entitled вЂњbrief history about fabswingers.comвЂќ; and (4) the written text that appears underneath this heading describes ComplainantвЂ™s internet site as вЂњthis famous internet site for swingersвЂќ and offers statistics for ComplainantвЂ™s internet site and details how exactly to use ComplainantвЂ™s website. Regarding the totality of the uncontroverted proof, the Panel finds that Respondent registered the website name in bad faith.
Pertaining to faith that is bad, Respondent is utilizing a website name this is certainly just like ComplainantвЂ™s Mark to host a website this is certainly attempting to sell solutions which are competitive with ComplainantвЂ™s solutions, such as the ubiquitous utilization of the Mark and ComplainantвЂ™s website name on the internet site. The Panel concludes that using the website name this way, Respondent has intentionally tried to attract, for commercial gain, online users to its site by producing a likelihood of confusion with ComplainantвЂ™s Mark regarding the supply, sponsorship, endorsement or affiliation of these site or even the services or products promoted on such website, inside the concept of paragraph 4(b)(iv) associated with the Policy. Advance Magazine Publishers Inc. v. Red Wagon Films, WIPO Case No. D2006-0893.
For the foregoing reasons, the Panel finds that paragraph 4(a)(iii) regarding the Policy happens to be pleased.
For the foregoing reasons, relative to paragraphs 4(i) associated with the Policy and 15 associated with the Rules, the Panel instructions that the Domain Name be used in Complainant.
Harrie R. Samaras Sole Panelist Date: September 16, 2019