Relevance into the situation and exactly why it had been struggling to offer the information included therein in its issue or reaction ( e.g., owing for some “exceptional” scenario) (see part 4.6 for the WIPO breakdown of WIPO Panel Views on Selected UDRP concerns, Third Edition (“WIPO Overview 3.0”)).
The respondent first submitted an informal response on March 13, 2018 and the Panel has therefore disregarded this submission on the basis that it was superseded by the terms of the Respondent’s formal Response which was filed on April 5, 2018 in the present case. The reaction had been followed nearly instantly by the document that is additional hours later on additionally on April 5, 2018. The Panel has accepted the extra document and contains combined this because of the reaction because of the fact that the full time difference between which these materials had been gotten by the middle is immaterial and that there doesn’t seem to be any prejudice to your Complainant from permitting such acceptance.
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. Because of the exact same token, the Panel has accepted the Respondent’s supplemental filing insofar as directed towards the Complainant’s supplemental filing to ensure the Respondent has gotten the ability of an answer towards the Complainant’s responses. The Panel is pleased that accepting the Parties’ submissions the proceedings may be conducted with due expedition and therefore each has already established an opportunity that is reasonable provide its instance.
B. Identical or Confusingly Similar. The Complainant describes its various authorized trademarks into the teenchat app term TINDER as noted in the background that is factual above.
The Panel is pleased that the Complainant has UDRP-relevant legal rights in such markings. 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 as well as the Complainant’s trademark. The Complainant submits that the generic domain that is top-level. Singles” should be either disregarded in this analysis or instead is highly recommended to bolster the sensed link with the Complainant’s solutions.
Area 1.11.1 regarding the WIPO Overview 3.0 notes the opinion view of panels underneath the Policy that the relevant top-level domain can be regarded as a standard registration requirement and therefore is disregarded beneath the very very first element confusing similarity test. Part 1.11.2 regarding the WIPO Overview 3.0 continues on to notice that this training is used regardless of the specific top-level domain and that the standard meaning ascribed thereto would not necessarily affect evaluation associated with the very first element, though it can be highly relevant to panel evaluation associated with 2nd and 3rd elements.
The Panel conducts a simple and objective side-by-side comparison of the Complainant’s mark TINDER with the second level of the disputed domain name “tender” in these circumstances, for the purposes of the first element. It really is instantly obvious into the Panel why these are alphanumerically almost identical being just a single page various. Also, whenever pronounced, these are typically exceedingly comparable aurally or phonetically. The 2nd syllable of both terms is identical and identically pronounced. The very first syllable of each, “tin” or “ten”, features a various vowel but this is simply not of overriding importance since they are phonetically extremely close and also to numerous speakers of English will be pronounced nearly indistinguishably. This might be adequate when it comes to Panel to get confusing similarity within the framework associated with the Policy.
The Panel notes the Respondent’s instance that the 2nd standard of the disputed website name “tender” and also the mark TINDER are very different terms when you look at the English language. This doesn’t when you look at the Panel’s viewpoint displace the impression of confusing similarity made upon it when they’re contrasted regarding the above foundation. To the observation must certanly be added the proven fact that the data prior to the Panel shows why these terms could be and they are recognised incorrectly as one another in line with the Bing search engine’s presumption that the seek out the “tender app” must suggest the “tinder app”. A typical misspelling of the trademark, whether or perhaps not such misspelling produces a unique term, is normally considered by panels become confusingly just like the appropriate mark for the purposes for the element that is first. This is due to the fact the disputed domain name contains sufficiently identifiable facets of the appropriate mark, including for instance a recognizable mention of the page sequence of these mark (see part 1.9 regarding the WIPO Overview 3.0 and ZB, N.A., dba Zions First National Bank v. Oneandone Private Registration, 1&1 Web Inc / John Mike, WIPO Case No. D2017-0137).
The Panel additionally notes that each associated with events are somewhat exercised as to whether or not the domain that is disputed might be described as an instance of “typo-squatting” inside their conversation associated with the very first part of the insurance policy. As indicated above, the very first element is focused on the matter of identification or confusing similarity between your trademark and website name concerned rather than with “typo-squatting” by itself. Quite simply, it isn’t needed for the Complainant to ascertain that the Respondent is “typo-squatting” in purchase to show identity or confusing similarity based on the Policy’s demands.
The point is, the Panel records for completeness it is not taking advantage of a typographical variant that it is unimpressed by the Respondent’s argument
Of this Complainant’s trademark considering that the letters “e” and “i” are on opposing edges of a“qwerty” keyboard that is standard. A really comparable assertion ended up being discarded in a past instance underneath the Policy (see Groupon, Inc. V. JackPotSoft LLC, WIPO Case No. D2014-2138) in circumstances where all except one regarding the letters in contrast had been identical, distinctive as well as in exactly the same purchase so that the entire look ended up being virtually identical. The letters other than the “e” and “i” are identical and in the same order such that the overall appearance is very similar while there may not be quite the same level of distinctiveness in the present case. It must additionally never be over looked that, despite its contention, the Respondent just isn’t always expecting most of the people to its internet site to use a typical “qwerty” keyboard. Whenever speaking about its logo design, the Respondent helps it be clear it is hoping to attract users of cellular devices. Such users will never 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 truly are almost certainly going to be entering text into such products by a number of ergonomic means that may likewise incorporate elements of predictive texting and also the word that is spoken.
An important an element of the Respondent’s situation is the fact that mixture of the mark plus the top-level domain signals legitimate coexistence or use that is fair. Nonetheless, as noted in area 1.11.2 regarding the WIPO Overview 3.0, panels typically focus their inquiry into this kind of matter from the element that is second of Policy. Likewise, whilst the Complainant contends that the top-level domain corresponds to its section of trade, hence signaling an abusive intent, panels typically focus their inquiry into this kind of contention from the element that is third. The element that is first in comparison, can be regarded as a low limit test regarding the trademark owner’s standing to register a issue under the insurance policy, put another way whether there was a enough nexus to evaluate the concepts captured into the 2nd and 3rd elements (see section 1.7 of this WIPO Overview 3.0).
In most of the circumstances, the Panel discovers that the Complainant has met the test underneath the very first element.