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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

QSoft Consulting Limited v. Lotom Group S.A.

Case No. DNL2009-0018

1. The Parties

The Complainant is QSoft Consulting Limited of Twickenham, Middlesex, United Kingdom of Great Britain and Northern Ireland, represented by Alexander Ramage Associates, United Kingdom of Great Britain and Northern Ireland.

The Respondent is Lotom Group S.A., of Panama City, Panama.

2. The Domain Name

The disputed domain name <gay-dar.nl> (hereinafter the "Domain Name") is registered with SIDN through the registrar EPAG Domainservices GmbH.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 11, 2009. On March 12, 2009, the Center transmitted by email to SIDN a request for registration verification in connection with the Domain Name. On March 13, 2009, SIDN transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

The Complaint has been submitted in English. On March 16, 2009 the Center provided the Complainant the opportunity to submit a reasoned request for English to be the language of the administrative proceedings. The Complainant submitted such request on March 20, 2009, stating that:

- the Complainant is based in England and is not fluent in the Dutch language;

- the Respondent has not replied to any communication and it can therefore not be determined whether the Respondent is fluent in Dutch;

- in a previous complaint against the Respondent, as specified in the Complaint, the Respondent did send an email to the Center in English; and

- the Respondent is based in the Spanish speaking country Panama, and will therefore reasonably not be put at a disadvantage by English being the language of proceedings.

On the basis thereof the Center provisionally decided to accept the Complaint as filed in English pursuant to article 16 of the Dispute Resolution Regulations for .nl Domain Names (the "Regulations") on March 24, 2009. On the same date the Center verified that the Complaint satisfied the formal requirements of the Regulations.

In accordance with articles 5.1 and 15.5 of the Regulations, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 24, 2009. In accordance with article 7.1 of the Regulations the due date for Response was April 13, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 14, 2009.

The Center appointed Alfred Meijboom as the Panelist in this matter on April 16, 2009. The Panelist finds that he was properly appointed. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with article 8.2 of the Regulations.

4. Factual Background

The Complainant operates an online dating service under the name "Gaydar". The dating services are provided through various "gaydar" domain names and websites in several countries and languages, including the Netherlands and the Dutch language, as appears from the website "www.gaydar.nl". The Complainant registered the domain name <gaydar.nl> in 2000.

Trademarks

The Complainant is the owner of the following trademark registrations:

1. the Community word mark GAYDAR (no. 3804168), registered on November 15, 2005 for various services in the classes 38 and 41;

2. the Community word mark GAYDAR (no. 2127264), registered on January 9, 2003 for various services in the classes 35, 38 and 42;

3. the Community device mark GAYDAR (no. 3886256), registered on October 11, 2005 for various services in the classes 35, 38, 41 and 45;

4. the Community word mark GAYDAR WHAT YOU WANT, WHEN YOU WANT IT (no. 3886264), registered on October 11, 2005 for various services in the classes 35, 38, 41 and 45;

5. the Community device mark GAYDAR.CO.UK - WHAT YOU WANT, WHEN YOU WANT IT (no. 2564458), registered on May 13, 2003 for various services in the classes 35, 38, and 45;

6. the Community word mark GAYDARGIRLS (no. 6441927), registered on January 20, 2009 for various goods and services in the classes 9, 35, 38, 41, 42 and 45; and

7. the Community word mark GAYDARNATION (no. 6441919), registered on October 9, 2008 for various goods and services in the classes 9, 35, 36, 38, 39, 41 and 45.

Hereinafter aforementioned trademarks will be together referred to as the "Trademarks".

Domain Name

The Respondent registered the Domain Name on June 12, 2008. The Domain Name links to a website that generates various sponsored links that apparently change from time to time, among which links to websites which have – to more or less extent – affinity with the dating services provided by the Complainant.

The Complainant sent a cease and desist letter by regular mail and email to the Respondent on August 13, 2008, requiring the Respondent to transfer the Domain Name to the Complainant in exchange for reimbursement of fees and costs to a maximum of GBP 100.--. The Respondent did not reply.

5. Parties' Contentions

A. Complainant

The Complainant has requested the Panelist to order that it will become the Domain Name holder instead of the Respondent. In this respect, Complainant has put forward the following grounds.

The Domain Name is identical or confusingly similar to Complainant's trademarks and trade name rights

The Complainant relies on the Trademarks and claimed that it has been operating under the term "Gaydar" continuously since at least 1999, that it is the holder of the <gaydar.nl> domain name since 2000 and that the corresponding website has in excess of 84,000 members.

According to the Complainant the expression "gay-dar" is visually substantially similar to the term "Gaydar", while phonetically both terms are indistinguishable. In this context, the Complainant has pointed out that the only difference between both terms is the hyphen inserted between "gay" and "dar".

Respondent has no rights or legitimate interests in the domain name

The Complainant has put forward that the registration of the Domain Name post-dates the registration and use of Complaint's domain name registrations. Furthermore, the Complainant has stated that it did not grant the Respondent any license or authorization to use the Trademarks and that the Respondent has no association with the ‘Gaydar' and/or Complainant's business. Also, the Complainant contended that the Respondent is not the registered proprietor of any Benelux or Community trademark registration in respect of the expression "gay-dar".

Respondent has registered or is using the Domain Name in bad faith

The Complainant has contended that the Respondent has registered the Domain Name primarily for the purpose of selling, renting or transferring it to the Complainant or its competitors for valuable consideration in excess of the cost of registration. The Complainant has put forward that it made an offer to buy the Domain Name for an amount of GBP 60.-- through a link to the domain name sales site "www.sedo.com" that would be available on the webpage of the Domain Name. According to the Complainant the Respondent refused this offer and made a counterproposal to the amount of GBP 3,999.--. The Complainant has substantiated these negotiations by submitting the relevant email correspondence.

Furthermore, the Complainant referred to the fact that the Respondent did not respond to Complainant's cease and desist letters demanding a transfer of the Domain Name.

To illustrate the Respondent's bad faith the Complainant has moreover referred to two previous WIPO decisions under the Regulations in which Respondent was involved and was considered to be in bad faith within the meaning of the Regulations.

B. Respondent

The Respondent did not submit any response to the Complaint.

6. Discussion and Findings

Introductory Remarks

Language of proceedings

Article 16 of the Regulations provides that the language of the proceedings shall, in principle, be Dutch, unless the panelist decides otherwise. In light of the fact that the Respondent has not responded to the Complaint, is seated in Panama, apparently is fluent in the English language as can be deduced from an email that it sent to the Center in the case Prof. Dr. Geert Hofstede en Geert Hofstede B.V. v. Lotom Group S.A., WIPO Case No. DNL2008-0043, and has not objected to English being the language of proceedings, the Panelist confirms the provisional decision of the Center and decides that English is the language of these proceedings.

Default of the Respondent

Article 7.4 of the Regulations provides that in the event that a respondent fails to submit a response, the complaint shall be granted unless the Panelist considers it to be without basis in law or in fact.

According to article 2.1 of the Regulations, the requested remedy shall be granted if the Complainant asserts and establishes each of the following:

a) that the Domain Name is identical or confusingly similar to

(I) a trademark, or trade name, protected under Dutch law in which the Complainant has rights; or

(II) a personal name registered in a Dutch municipal register of persons ("gemeentelijke basisadministratie"), or a name of a Dutch public legal entity or a name of an association or foundation located in the Netherlands under which the Complainant undertakes public activities on a permanent basis; and

b) that the Respondent has no rights to or legitimate interests in the Domain Name; and

c) that the Domain Name has been registered or is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant has based its Complaint on the Trademarks and has submitted copies of the trademark registrations from which follows that it is the holder of the Trademarks.

It is established case law that the top level domain ".nl" can be disregarded in assessing the similarity between the relevant trademark(s) on the one hand, and the contested domain name on the other. In this context, the Domain Name could be considered practically identical to the Trademarks existing of the word GAYDAR alone (i.e. the first two Trademarks listed above), the only difference being the hyphen between "gay" and "dar". The hyphen does not make any relevant difference (see also Royal Canin v. "Planet Media Group N.V.", WIPO Case No. DNL2008-0009). Therefore, the Panelist finds that the Domain Name is confusingly similar to Complainant's Trademarks within the meaning of article 2.1(a) of the Regulations.

B. Rights or Legitimate Interests

Pursuant to article 2.1(b) of the Regulations the Complainant must demonstrate that the Respondent has no rights or legitimate interests in the Domain Name. This condition is met if the Complainant makes a prima facie case that the Respondent has no such rights or interests, and the Respondent fails to rebut this.

As follows from the Complaint, the Respondent does not have any relevant trademark or trade name rights regarding the term "gay-dar", did not have any authorization to register and use the Domain Name, and only uses the Domain Name to offer sponsored links. The Respondent did not dispute this, the Panelist could not establish any indication that any of the circumstances as described in article 3.1 of the Regulations apply, nor that the Respondent in any possible other way has a right to or legitimate interest in the Domain Name. For these reasons, the Panelist is satisfied that the Respondent has no rights to, or legitimate interests in the Domain Name.

C. Registered or Used in Bad Faith

The Domain Name registration post-dates the Trademarks which are apparently intensively used throughout Europe, including the Netherlands. Therefore and because Respondent did not dispute the Complainant's allegations in this respect, the Panelist is of the opinion that the Respondent was aware or should have been aware of the Complainant and its Trademarks. All the more so, since the Domain Name resolves to a website that offers – as appears from the Annexes to the Complaint – sponsored links to inter alia dating related websites. Taking into account the sponsored links, the Domain Name can also be considered as used for commercial gain, by attracting Internet users to a website or other online locations of the Respondent through the likelihood of confusion which may arise with the Trademarks.

In addition, although the Complainant did not submit conclusive evidence that the Respondent has actually offered the Domain Name to Complainant for an amount of GBP 3,999.-- (Annex F does, for example, not identify the sender of the offer or the counterproposal), the Panelist considers it plausible that the Respondent has actually made this offer, or at least has the intention to sell the Domain Name for valuable consideration in excess of the costs of registration.

Furthermore, taking into account the previous decisions Prof. Dr. Geert Hofstede en Geert Hofstede B.V. v. Lotom Group S.A., WIPO Case No. DNL2008-0043; Technische Unie B.V. v. Lotom Group S.A., WIPO Case No. DNL2008-0063 and ADP Nederland B.V. v. Lotom Group S.A., WIPO Case No. DNL2009-0009 in which Respondent was involved as well and equally chose not to file a response, it seems likely that the Respondent is a domain name squatter.

Given the foregoing, the Panelist finds that the Domain Name has been registered and used in bad faith.

In conclusion, the Complainant has also satisfied article 2.1(c) of the Regulations.

7. Decision

For all the foregoing reasons, in accordance with articles 1 and 13 of the Regulations, the Panelist orders that the domain name <gay-dar.nl> be transferred to the Complainant.

Alfred Meijboom
Sole Panelist

Dated: April 29, 2009