Relevance towards the instance and just why it absolutely was not able to give you the information contained therein in its issue or reaction ( ag e.g., owing with a “exceptional” situation) (see area 4.6 associated with WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
In our instance, the Respondent first presented a friendly reaction on March 13, 2018 therefore the Panel has consequently disregarded this distribution on the foundation it was superseded by the regards to the Respondent’s formal reaction that has been filed on April 5, 2018. The reaction had been followed nearly instantly by an document that is additional hours later additionally on April 5, 2018. The Panel has accepted the excess document and it has combined this because of the reaction because of the fact that the full time difference between which these materials had been gotten by the guts is immaterial and that there will not be seemingly any prejudice into the Complainant from enabling acceptance that is such.
The Panel considers it fair to accept this because it is strictly confined to matters raised by the Response which the Complainant could not reasonably have anticipated with regard to the Complainant’s supplemental filing. The Panel has accepted the Respondent’s supplemental filing insofar as directed to the Complainant’s supplemental filing to ensure that the Respondent has received the opportunity of a reply to the Complainant’s comments by the same token. The Panel is pleased that accepting the Parties’ submissions the proceedings may be carried out with due expedition and that each has already established an opportunity that is reasonable provide its instance.
B. Identical or Confusingly Similar. The Complainant relates to its various subscribed trademarks within the term TINDER as noted within the background that is factual above.
The Panel is pleased that the Complainant has rights that are UDRP-relevant such marks. The test of confusing similarity as created in Policy precedent typically involves a side-by-side that is simple and/or aural contrast associated with disputed domain title plus the Complainant’s trademark. The Complainant submits that the generic top-level domain “. Singles” should either be disregarded in this analysis or alternatively should be thought about to bolster the observed link with the Complainant’s solutions.
Section 1.11.1 of this WIPO Overview 3.0 notes the consensus view of panels beneath the Policy that the relevant top-level domain is deemed a typical registration requirement and therefore is disregarded underneath the very first element confusing similarity test. Area 1.11.2 for the WIPO Overview 3.0 continues on to notice that this training is applied regardless of the specific top-level domain and that the normal meaning ascribed thereto will never necessarily affect evaluation associated with very very very first element, even though it can be highly relevant to panel evaluation associated with 2nd and 3rd elements.
In these circumstances, when it comes to purposes for the first element, the Panel conducts an easy and objective side-by-side comparison associated with the Complainant’s mark TINDER using the 2nd amount of the disputed domain name “tender”. It really is straight away obvious into the Panel why these are alphanumerically almost identical being just a solitary page various. Also, when pronounced, they’ve been incredibly comparable aurally or phonetically. The syllable that is second of terms is identical and identically pronounced. The initial syllable of each, “tin” or “ten”, includes a various vowel but this is simply not of overriding importance because they are phonetically really close and also to numerous speakers of English will be pronounced nearly indistinguishably. That is enough when it comes to Panel to get confusing similarity within the framework for the Policy.
The Panel notes the Respondent’s instance that the 2nd degree of the domain that is disputed “tender” and also the mark TINDER will vary words within the English language. This doesn’t within the Panel’s opinion displace the impression of confusing similarity made upon it when they’re contrasted from the above foundation. For this observation needs to be added the proven fact that evidence ahead of the Panel suggests why these terms may be and therefore are seen erroneously as each other in line with the Bing search engine’s presumption that a seek out the “tender app” must suggest the “tinder app”. A standard misspelling of a trademark, whether or otherwise not such misspelling produces another type of term, is normally considered by panels become confusingly just like the appropriate mark when it comes to purposes of this element that is first. This comes from the truth that the disputed domain name contains adequately familiar components of the appropriate mark, including for instance a recognizable mention of the page sequence of these mark (see area 1.9 for the WIPO Overview 3.0 and ZB, N.A., dba Zions First National Bank v. Oneandone Private Registration, 1&1 online Inc / John Mike, WIPO Case No. D2017-0137).
The Panel additionally notes that both associated with Parties are somewhat exercised as to whether or not the domain that is disputed might be called an instance of “typo-squatting” within their discussion of this very first component of the insurance policy. As indicated above, the element that is first focused on the problem of identification or confusing similarity amongst the trademark and domain name concerned and never with “typo-squatting” by itself. Put simply, it’s not needed for the Complainant to ascertain that the Respondent is that is“typo-squatting purchase to show identity or confusing similarity based on the Policy’s requirements.
The point is, the Panel records for completeness it is unimpressed because of the Respondent’s argument it is maybe not benefiting from a typographical variation
Associated with Complainant’s trademark since the letters “e” and “i” are on other edges of a“qwerty” keyboard that is standard. An extremely comparable assertion had been discarded in a previous instance beneath the Policy (see Groupon, Inc. V. JackPotSoft LLC, WIPO Case No. D2014-2138) in circumstances where all except one associated with the letters in contrast had been identical, distinctive plus in the exact same purchase in a way that the entire look had been virtually identical. While there might not be quite exactly the same amount of distinctiveness in our situation, the letters apart from the “e” and “i” tsdating are identical plus in exactly the same purchase so that the entire look is quite comparable. It will additionally never be over looked that, despite its contention, the Respondent just isn’t fundamentally anticipating all the people to its site to make use of a“qwerty” keyboard that is standard. Whenever speaking about its logo design, it is made by the respondent clear it is hoping to attract users of cellular devices. Such users wouldn’t normally fundamentally be typing the domain that is disputed on a “qwerty” keyboard nor certainly on any keyboard which features much distance amongst the letters “e” and “i”. They’ve been almost certainly going to be entering text into such products by a number of ergonomic means that may also include elements of predictive texting and also the spoken term.
A vital an element of the Respondent’s instance is the fact that mixture of the mark together with top-level domain signals genuine coexistence or use that is fair. Nevertheless, as noted in area 1.11.2 of this WIPO Overview 3.0, panels typically focus their inquiry into this type of matter regarding the 2nd section of the Policy. Likewise, as the Complainant contends that the top-level domain corresponds to its part of trade, hence signaling an abusive intent, panels typically focus their inquiry into this type of contention regarding the element that is third. The element that is first by comparison, can be considered the lowest limit test in regards to the trademark owner’s standing to register a problem under the insurance policy, put differently whether there clearly was a sufficient nexus to evaluate the axioms captured within the second and 3rd elements (see section 1.7 for the WIPO Overview 3.0).
The Panel finds that the Complainant has met the test under the first element in all of these circumstances.