Relevance towards the instance and just why it had been not able to supply the information included therein in its grievance or response ( e.g., owing for some “exceptional” situation) (see part 4.6 regarding 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an informal response on March 13, 2018 and the Panel has therefore disregarded this submission on the basis that it was superseded by the terms of the Respondent’s formal Response which was filed on April 5, 2018 in the present case.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 very nearly instantly by an extra document some hours later on additionally on April 5, 2018. The Panel has accepted the excess document and has now combined this because of the reaction simply because that the full time difference between which these materials were gotten by the guts is immaterial and that there will not seem to be any prejudice towards the Complainant from enabling acceptance that is such.
Pertaining to the Complainant’s supplemental filing, the Panel considers it reasonable to just accept this since it is strictly restricted to things raised by the reaction that the Complainant could perhaps not fairly have expected. By the exact same token, the Panel has accepted the Respondent’s supplemental filing insofar as instructed to your Complainant’s supplemental filing to make sure that the Respondent has gotten the ability of a reply into the Complainant’s remarks. The Panel is pleased that accepting the Parties’ submissions the proceedings may be carried out with due expedition and therefore each has already established an opportunity that is reasonable provide its instance.
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 comparison associated with disputed website name therefore the Complainant’s trademark. The Complainant submits that the generic domain that is top-level. Singles” should either be disregarded in this analysis or instead is highly recommended to bolster the sensed link with the Complainant’s solutions.
Area 1.11.1 of this WIPO Overview 3.0 notes the opinion view of panels underneath the Policy that the applicable top-level domain can be considered a regular registration requirement and thus is disregarded beneath the very first element similarity test that is confusing. Area 1.11.2 associated with the WIPO Overview 3.0 continues to see that this training is applied regardless of the specific top-level domain and that the normal meaning ascribed thereto will never necessarily influence evaluation regarding the very first element, even though it might be highly relevant to panel evaluation regarding the 2nd and 3rd elements.
Within these circumstances, for the purposes associated with very first element, the Panel conducts an easy and objective side-by-side comparison of this Complainant’s mark TINDER utilizing the 2nd amount of the disputed domain name “tender”. It really is straight away obvious into the Panel why these are alphanumerically being that is almost identical a solitary page various. Moreover, whenever pronounced, these are typically incredibly similar aurally or phonetically. The 2nd syllable of both terms is identical and identically pronounced. The initial syllable of each, “tin” or “ten”, includes a vowel that is different this is simply not of overriding importance since they are phonetically very close and also to numerous speakers of English could be pronounced nearly indistinguishably. This is certainly enough when it comes to Panel to locate similarity that is confusing the framework associated with the Policy.
The Panel notes the Respondent’s instance that the 2nd amount of the disputed domain name “tender” and also the mark TINDER vary terms into the English language. This doesn’t within the Panel’s viewpoint displace the impression of confusing similarity made they are compared on the above basis upon it when. For this observation should be added the proven fact that the data ahead of the Panel shows why these terms could be and they are recognised incorrectly as one another on the basis of the Bing search engine’s presumption that the look for the “tender app” must mean the “tinder app”. A typical misspelling of a trademark, whether or perhaps not such misspelling produces an alternate term, is normally considered by panels become confusingly like the appropriate mark for the purposes of this element that is first. This comes from the truth that the domain that is disputed contains adequately identifiable 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 Web Inc / John Mike, WIPO Case No. D2017-0137).
The Panel additionally notes that each associated with events are somewhat exercised as to perhaps the domain that is disputed could possibly be referred to as an incident of “typo-squatting” within their conversation associated with very very first component of the insurance policy. As indicated above, the very first element is worried about the problem of identification or confusing similarity between your trademark and domain name concerned and never with “typo-squatting” by itself. Put simply, it’s not essential for the Complainant to ascertain that the Respondent is that is“typo-squatting purchase to show identification or confusing similarity in line with the Policy’s needs.
For the Complainant’s trademark since 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 situation beneath the Policy (see Groupon, Inc. V. JackPotSoft LLC, WIPO Case No. D2014-2138) in circumstances where all except one associated with letters in contrast had been identical, distinctive as well as in the exact same purchase so that the entire look ended up being quite similar. While there is almost certainly not quite exactly the same amount of distinctiveness in our situation, the letters aside from the “e” and “i” are identical plus in the exact same purchase in a way that the general look is extremely comparable. It will additionally never be ignored that, despite its contention, the Respondent just isn’t always anticipating every one of the visitors to its web site to utilize a“qwerty” keyboard that is standard. When discussing its logo, it is made by the respondent clear it is looking 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 have been more prone to be entering text into such products by a number of ergonomic means which could likewise incorporate elements of predictive texting and also the spoken term.
A vital area of the Respondent’s instance is the fact that mix of the mark and also the top-level domain signals genuine coexistence or use that is fair. Nevertheless, as noted in area 1.11.2 associated with the WIPO Overview 3.0, panels typically focus their inquiry into this type of matter from the element that is second of Policy. Likewise, even though 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 first element, by comparison, is deemed a low limit test regarding the trademark owner’s standing to register a issue under the insurance policy, easily put whether there was a enough nexus to evaluate the concepts captured when you look at the 2nd and 3rd elements (see section 1.7 of this WIPO Overview 3.0).
The Panel finds that the Complainant has met the test under the first element in all of these circumstances.