Respondent submits that it has been using the Domain Name to offer bona fide services in the online dating industry and has been active on this . Based on its popularity, Respondent claims it is commonly known by its Domain Name within the online dating industry. The homepage of the website linked to the Domain Name makes clear that the website is owned and operated by Linking Lovers Ltd and that there is no affiliation with any of the competing online dating websites owned by Complainant. Consequently, Respondent urges that it is making a legitimate commercial use of the Domain Name, thus demonstrating that Respondent has rights and legitimate interests in it.
With regard to Complainant’s allegation that Linking Lovers Ltd was incorporated on , and that this allegedly proves that Respondent’s use of the Domain Name is calculated to falsely suggest to Internet users that Complainant is affiliated with Respondent’s website, Respondent emphasizes that the fact that Linking Lovers Ltd was incorporated on does not change the fact that the Domain Name has been legitimately used since 2014, nor does this have anything to do with the allegations made by Complainant. Consequently, Respondent asks the Panel to disregard this claim in determining the legitimate use of the Domain Name.
In response to Complainant’s claim that Respondent is using the Domain Name to intentionally attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark, Respondent states that Complainant and Respondent are two distinct operators in the online dating industry. Respondent states that it has in no way acted in a manner that would confuse the relevant public into assuming an association between the Domain Name and Complainant. Furthermore, there is no potential for confusion between the two operators and their domain names. On the homepage linked to the Domain Name it is made clear that the website is owned and operated by Linking Lovers Ltd. The Domain Name and its content do not in any way suggest any relation between Complainant naughtydate and Respondent.
Respondent also asserts that Complainant has provided no evidence to substantiate any allegations of fraudulent use of the Domain Name (i.e., phishing) by Respondent. Respondent submits that it is a legitimate operator in the online dating industry.
Respondent also states that Complainant registered its CHEEKYDEVIL mark (EUTM No. 015039589) two years after Respondent started using the Domain Name for its online dating services. Respondent asserts that this trademark was registered in bad faith. In addition, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 3.1, states that there is a general consensus that when a disputed domain name is registered prior to the use of a registered (or unregistered) tradee is not in bad faith because the registrant could not have contemplated the complainant’s then non-existent right. Consequently, considering the fact that Complainants application for its CHEEKYDEVIL e has been registered since 2008 and has been used for online dating services since 2014, Respondent could not have contemplated Complainant’s non-existent rights.
7. Discussion and Findings
To succeed in its claim, Complainant must demonstrate that the three elements enumerated in paragraph 4(a) of the Policy have been satisfied. These elements are that:
(i) the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
A. Identical or Confusingly Similar
The Panel must determine whether the Domain Name is identical or confusingly similar to a trademark in which Complainant has rights.