Relevance towards the situation and just why it had been struggling to supply the information included therein with its complaint or reaction ( ag e.g., owing for some “exceptional” scenario) (see part 4.6 regarding the WIPO breakdown of WIPO Panel Views on Selected UDRP concerns, Third Edition (“WIPO Overview 3.0”)).
In today’s instance, the Respondent first presented a casual reaction on March 13, 2018 plus the Panel has consequently disregarded this distribution from the foundation it was superseded because of the regards to the Respondent’s formal reaction that has been filed on April 5, 2018. The reaction had been followed very nearly instantly by an document that is additional hours later on additionally on April 5, 2018. The Panel has accepted the extra document and it has combined this utilizing the reaction simply because that enough time difference between which these materials had been gotten by the guts is immaterial and that there will not seem to be any prejudice towards the Complainant from permitting acceptance that is such.
The Panel considers it fair to accept this because it is strictly confined to matters raised by the Response which the Complainant could not reasonably have anticipated with regard to the Complainant’s supplemental filing. The Panel has accepted the Respondent’s supplemental filing insofar as directed to the Complainant’s supplemental filing to ensure that the Respondent has received the opportunity of a reply to the Complainant’s comments by the same token. The Panel is satisfied that accepting the Parties’ submissions the proceedings may be carried out with due expedition and that each has already established a reasonable possibility to provide its instance.
B. Identical or Confusingly Similar. The Complainant relates to its various authorized trademarks within the term TINDER as noted in the background that is factual above.
The Panel is pleased that the Complainant has rights that are UDRP-relevant such markings. The test of confusing similarity as created in Policy precedent typically involves a side-by-side that is simple and/or aural contrast of this disputed domain title and also the Complainant’s trademark. The Complainant submits that the generic top-level domain “. Singles” should either be disregarded in this analysis or instead is highly recommended to bolster the recognized link with the Complainant’s solutions.
Area 1.11.1 for the WIPO Overview 3.0 notes the opinion view of panels underneath the Policy that the relevant top-level domain can be regarded as a typical registration requirement and therefore is disregarded underneath the very first element similarity test that is confusing. Part 1.11.2 associated with the WIPO Overview 3.0 continues on to notice that this training is used aside from the specific top-level domain and that the standard meaning ascribed thereto will never necessarily affect evaluation for the very very first element, though it might be highly relevant to panel evaluation for the 2nd and 3rd elements.
The Panel conducts a simple and objective side-by-side comparison of the Complainant’s mark TINDER with the second level of the disputed domain name “tender” in these circumstances, for the purposes of the first element. It really is straight away obvious towards the Panel why these are alphanumerically almost identical being just a solitary page various. Moreover, whenever pronounced, these are typically acutely comparable aurally or phonetically. The syllable that is second of terms is identical and identically pronounced. The very first syllable of each, “tin” or “ten”, includes a vowel that is different it is not of overriding importance because they are phonetically really close and also to numerous speakers of English will be pronounced nearly indistinguishably. This will be enough for the Panel to locate similarity that is confusing the framework regarding the Policy.
The Panel notes the Respondent’s instance that the 2nd amount of the disputed website name “tender” while the mark TINDER are very different words when you look at the English language. This doesn’t when you look at the Panel’s viewpoint displace the impression of confusing similarity made upon it when they’re contrasted regarding the above foundation. To the observation must certanly be added the known undeniable fact that the data ahead of the Panel shows why these terms could be and generally are recognised incorrectly as one another on the basis of the Google search engine’s assumption that a seek out the “tender app” must suggest the “tinder app”. A typical misspelling of the trademark, whether or perhaps not such misspelling produces an alternative term, is normally considered by panels become confusingly much like the appropriate mark for the purposes regarding the element that is first. This is due to the truth that the disputed domain name contains adequately familiar facets 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 regarding the Parties are somewhat exercised as to perhaps the disputed domain title could possibly be referred to as a instance of “typo-squatting” within their conversation of this 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. This basically means, it isn’t required for the Complainant to ascertain that the Respondent is that is“typo-squatting purchase to show identification or confusing similarity based on the Policy’s demands.
The point is, the Panel notes for completeness that it’s not taking advantage of a typographical variant that it is unimpressed by the Respondent’s argument
Of this Complainant’s trademark since the letters “e” and “i” are on opposing edges of a regular “qwerty” keyboard. An extremely assertion that is similar removed in a past instance underneath the Policy (see Groupon, Inc. V. JackPotSoft LLC, WIPO Case No. D2014-2138) in circumstances where all excepting one regarding the letters in contrast had been identical, distinctive as well as in the exact same purchase in a way that the general appearance ended up being quite similar. While there may possibly not be quite the exact same amount of distinctiveness in our instance, the letters aside from the “e” and “i” are identical plus in equivalent purchase so that the entire look is quite comparable. It should additionally never be over looked that, despite its contention, the Respondent just isn’t fundamentally anticipating most of the visitors to its site to use a“qwerty” keyboard that is standard. Whenever talking about its logo design, the Respondent helps it be clear that it’s looking to attract users of mobile phones. Such users wouldn’t normally always 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 truly are very likely to be entering text into such products by a number of ergonomic means which could likewise incorporate elements of predictive texting as well as the spoken term.
An important an element of the Respondent’s instance is that the mix of the mark and also 
the top-level domain signals genuine coexistence or fair usage. Nonetheless, as noted in area 1.11.2 associated with the WIPO Overview 3.0, panels typically focus their inquiry into this type of matter in the 2nd part of the Policy. Likewise, whilst the Complainant contends that the top-level domain corresponds to its section of trade, hence signaling an abusive intent, panels typically focus their inquiry into this type of contention in the 3rd element. The element that is first in comparison, can be regarded as a decreased limit test regarding the trademark owner’s standing to register a grievance under the insurance policy, put simply whether there was a enough nexus to evaluate the concepts captured within the second and 3rd elements (see section 1.7 for the WIPO Overview 3.0).
In most among these circumstances, the Panel discovers that the Complainant has met the test underneath the very first element.