Complainant states that it also offers dating services under other trademarks that are characterized by the fanciful graphic of a heart design with two little horns and a tail (like a “devil”)plainant registered EUTMs in 2010 and 2011 (EUTM Nos. 008560971, 010175073 and 010175578) using this graphic design, and Complainant has submitted evidence of the use of this design logo in different countries (Denmark, France, Spain and the United Kingdom)plainant states that the webpage linked to the Domain Name copies the design of the heart with two little horns and a tail that characterizes Complainant’s dating services.
This mixture leads consumers to confusion and makes them believe mistakenly that the dating services provided by the website linked to the Domain Name are provided by Complainant.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) Respondent is not a licensee or affiliate of Complainant, nor has Respondent received any permission or consent to use Complainant’s trademark; (ii) Complainant has prior rights in its trademark which predate Respondent’s registration of the Domain Name; and (iii) Respondent is not commonly known by the trademark. In view of these facts, Complainant asserts that Respondent’s use of the Domain Name seems calculated to falsely suggest to Internet users that Complainant is affiliated with Respondent’s website.
Complainant notes that paragraph 4(c) of the Policy provides that a respondent may demonstrate rights or legitimate interests in a domain name by establishing that prior to the dispute, it used (or made demonstrable preparations to use) a domain name in connection with a bona fide offering of goods or services. However, Complainant states that the use of the Domain Name, which is confusingly similar to Complainant’s trademarks, with an intention of deriving advantage from user confusion and diverting Internet users to other commercial sites does not confer rights or legitimate interests on Respondent, but instead clearly infringes Complainant’s trademarks in the relevant classes of services. Respondent has attempted to use the Domain Name for commercial gain at the expense of Complainant’s business, by creating a likelihood of confusion with Complainant’s CHEEKYLOVERS mark and with the design logo represented by Complainant’s European Union trade marks (EUTM Nos. 008560971, 010175073 and 010175578), thereby diverting consumers to its own website.
Complainant’ contends that the evidence in the record supports the position that Respondent acquired the Domain Name in the hope of intentionally attracting, for commercial gain, Internet users to Respondent’s website by creating this likelihood of confusion with Complainant and its CHEEKYLOVERS mark. Such conduct has been repeatedly found not to constitute a bona fide offering of goods or services for the purposes of the Policy where Respondent trades on, or appears to trade on, the trademark significance of Complainant’s trademark.
Complainant contends that the intent of the Policy is to provide a fair and efficient mechanism for trademark owners to obtain redress in situations where their trademark rights are abused as a result of bad faith activities of domain name registrants, and that there is no reason why the availability of redress should be confined to situations where bad faith is present at the time of acquisition of a domain name. To limit the trademark owner’s redress in this way would mean that even the most damaging abuse of a trademark right through the egregious bad faith use of a domain name would be immune from remedy under the Policy, so long as the registrant was not acting in bad faith when the domain name was acquired. Thus, according to Complainant, the Policy expressly recognizes that, where the disputed domain name is identical or confusingly similar to a complainant’s trademark and the respondent has no rights or legitimate interests in the domain name, in certain circumstances bad faith use of a domain name alone is sufficient to entitle the complainant to a remedy.