Findings and rhetorical or hypothetical questions. The Panel has endeavored in summary all of this material to the contentions noted below. While this is of prerequisite a synopsis, the Panel notes that most associated with the Respondent’s submissions had been considered within their entirety relating to the current choice.
The Respondent requests that the Complaint be rejected. The Respondent asserts it is perhaps not engaged in typo-squatting and contrasts the positioning associated with the disputed website name, which it notes is a legitimate and common term in English that relates and it is essential to dating, with that of the hypothetical website name which eliminates one letter from the well-known brand name hence making a meaningless typographical variant. The Respondent submits that the previous is a good faith enrollment even though the latter is going to be in bad faith.
The Respondent notes that the domain that is disputed shouldn’t be regarded as a typographical variant for the Complainant’s mark due to the fact substituted letters
“e” and “i” are on reverse edges associated with the keyboard in a way that the secrets are pushed with various fingers. The Respondent adds that typo-squatting just is sensible when utilizing a “.com” website name because browsers will include this domain immediately if just one term is entered or because online users typically add “.com” to virtually any title by muscle memory.
The Respondent states it registered multiple “. Singles”, “. Dating”, “. Date”, and comparable domains into the format “dating related term” dot “dating related gTLD”, noting that most of its commercial sites are about dating and that in this context “singles” is a well known search keyword. The Respondent notes that the gTLD “. Singles” has a target audience of online dating sites which will be its part of company. The Respondent states that the disputed website name is comparable to the others of its dating domain names not to your Complainant’s TINDER mark, including that there surely is a naming pattern and therefore a number of these had been registered in the exact same time. The Respondent claims because it does not trust the Complainant that it used the thesaurus to create the list but that this is not attached. The Respondent proposes to produce such list available when it is just accessed by the middle.
The Respondent claims so it has spent considerable amounts of money on each site over years, possibly prior to the Complainant having any website that it runs less than a dozen websites and submits that the traffic to such sites results from paid advertisements and returning users, adding. The Respondent adds it ever have the Complainant’s mark in mind, nor has the website associated with the disputed domain name shown any attempt to be associated with the fling Complainant or its TINDER mark that it has never used the word “tinder” as a keyword or in any advertisement content, nor have its advertisements imitated the Complainant’s offering, nor did. The Respondent notes that the people to its site see no adverts and create no earnings unless they join, contending that there is no part of it driving visitors to its splash page where there are not any ads.
The Respondent submits that anybody whose intention have been typo-squatting could have utilized a “tinder” keyword. The Respondent states that unlike the Complainant it will not develop mobile applications, nor does the Respondent have confidence in the Complainant’s concept that is dating noting that its very own concept is significantly diffent whereby any individual may contact just about any without matching. The Respondent states the Complainant’s concept is just a “lookup app” while “tender” is really an expressed word utilized by individuals shopping for longterm relationships.
The Respondent submits that “tender” is a vital term that is popularly utilized in the dating company themselves or their ideal partner on dating sites under the meaning of soft, delicate or gentle because it is one of the most suitable words for both native and non-native English speakers to describe. The Respondent supports this assertion with regards to screenshots from alternative party internet dating sites which it states feature considerable utilization of this word in thousands or an incredible number of pages, the goal of which can be for users to spell it out their individual characteristics. The Respondent adds that a lot of individuals on internet dating sites are searching for a tender partner that is single for this reason certainly one of the Respondent’s internet sites is termed “Tender Singles” whereby it’s a good idea to learn the 2nd and top-level regarding the disputed domain title together.
The Respondent adds that “tender” is a good trait or feature of men and women and therefore its potential audience could have an optimistic a reaction to this and asserts that only a few reports about the Complainant’s TINDER mark are universally good so that it wouldn’t normally have attempt to have its site confused with the Complainant’s solutions. The Respondent submits that the phrase “tinder” is certainly not commonly applied to alternative party internet dating sites but, where it is often used, this really is as a misspelling for the term “tender”.
The Respondent claims so it only makes use of the phrase “Tender” with its logo design as that is mainstream for many internet sites in the place of to create out of the full website name and therefore this also looks better on mobile phones because otherwise the logo design would occupy the landing page that is whole.
The Respondent asserts that it’s not lawfully permissible or fair when it comes to Complainant to find to stop other people from making use of terms such as “tender”, “dating”, “singles”, “gentle”, “kind”, “cupid”, “love”, “heart”, etc. In dating websites’ names since these terms are associated with dating. The Respondent specifically submits that “tender” can not be protected for online dating services as “apple” can not be protected for attempting to sell fruit.
The Respondent executes hypothetical searches from the “Google” search motor and creates the outcome which it claims could be done whenever users enter terms such as for instance “tender” within their browser.
The Respondent claims that users will never look for “tender” by itself if looking the Respondent’s web site but for “tender singles” and likewise would look perhaps perhaps not for “tinder” by itself but also for “tinder app” or “tinder mobile” when searching for the Complainant’s solutions.
The Respondent asserts that the issue happens to be introduced bad faith since the Complainant hasn’t formerly contacted the Respondent to go over its concerns. Had it done this, the Respondent notes that it might have considered “a feasible modification”, for instance an “even more various font when you look at the logo design” but says so it will not do so, incorporating that that is an incident of an industry leader trying to intimidate a startup.
C. Respondent’s extra distribution to Response
The Respondent provides four screenshots from the Google AdWords account having redacted certain information which it claims is unrelated to the matter. The Respondent notes that Bing will not let the utilization of significantly more than one AdWords account fully for a particular web site and that it is really not feasible to improve a brief history for the account. The Respondent claims that the screenshots show all data for the account as well as a filter for the term “tinder” which it states indicates that such word has not been found in key words or advertisers’ content. The Respondent claims that the last screenshot shows two advertisements in “removed” status which it argues demonstrate that this has constantly used both associated with the terms “tender” and “singles” into the ads.
The Respondent adds that the screenshot implies that is has invested CHF 34,382.49 on AdWords to promote the disputed website name and CHF 161,927.98 as a whole for every one of its web sites. The Respondent claims that the majority of its traffic originates from taken care of ads. The Respondent indicates it would do so for typo-squatting in bad faith if it did not trigger advertisements for the word “tinder”, especially as keywords are not visible to the user and that it is legal and permitted to use the name or brand of a competitor in a keyword that it has spent around 30% of the average Swiss IT employee’s salary and asks why it is considered by the Complainant. The Respondent submits that this shows that the Complainant’s application had not been in its brain either when it known as the internet site or whenever it labored on its advertising.
D. Complainant’s supplemental filing
The Complainant records that the Respondent has tried showing so it hasn’t benefitted from the Complainant’s trademark via ad acquisitions but records that the meta tags on the site linked to the domain that is disputed have its, or its affiliates’, trademarks MATCH, LOTS OF FISH and POF.