Complainant submits that Respondent is using the Domain Name, which is confusingly similar to Complainant’s tradee resolves to a webpage that has the appearance of being a webpage belonging to Complainant, to support the initial confusion that the Domain Name belongs to Complainant’s and relates to Complainant’s services. Using the Domain Name that is confusingly similar to Complainant’s trademarks for a competing website means that Respondent is using it to create confusion among Internet users to attract visitors to Respondent’s website for commercial gain.
Complainant’s also argues that Respondent’s use of a privacy service to hide Respondent’s data should be viewed as illegitimate in this case. Although privacy shields might be legitimate in some cases, it is difficult to see why Respondent needs to protect its identity except to frustrate the purposes of the Policy. Further, in circumstances like this, the privacy shield e registrations amongst themselves without any public record that there has been a transfer, thus allowing them to evade enforcement of legitimate third-party rights or to obstruct proceedings commenced under the Policy. Such use contradicts the Policy’s overriding objectives to preserve accountability for unlawful acts on the Internet and to curb the abusive registration of domain names and cybersquatting.
Respondent states that it has been using the Domain Name as an adult dating website since 2014, and that it is well known for its Internet dating services and has over 440,000 members. Respondent further states that it is ranked as a top 10 dating site, and in e was visited more than 412,000 times. Based on these facts, Respondent argues that the Domain Name is well known by the relevant public, in particular, the public that uses Internet dating sites.
Respondent states that on , Complainant filed EUTM No. 015039589 for the plainant registered this mark more than a year after Respondent started using the Domain Name for an Internet dating website. Respondent emphasizes that Complainant has never used the “CheekyDevil” sign, either prior to registering it as a trademark or afterwards. Due to the fact that Respondent’s Domain Name is well known for the services it provides in the online dating industry, Respondent argues that Complainant was aware of the existence of the Domain Name prior to registering CHEEKYDEVIL as a e industry and Complainant has never used the CheekyDevil sign, Respondent argues that Complainant registered the CHEEKYDEVIL mark for the sole purpose of preventing Respondent from using the Domain Name. In response, on , Respondent filed a request with the European Union Intellectual Property Office (“EUIPO”) to declare Complainant’s CHEEKYDEVIL mark invalid on grounds of bad faith.
Respondent also states that while Complainant claims no response to Complainant’s cease-and-desist letter of was received, this is false. Respondent provides evidence to show that Complainant contacted Respondent on two , and that Respondent replied to both these letters on .
Respondent asserts that the dominant elements of Complainant’s e are the terms “lovers” and “devil”, respectively
Respondent refers to legal Tinder description test for determining confusing similarity under the Policy, involving a comparison between the tradee itself to determine likelihood of Internet user confusion: the application of the confusing similarity test typically involves a straightforward visual or aural comparison of the tradee. The term “cheeky” is a descriptive adjective that relies on the dominant element to have meaning, and therefore cannot stand alone. Consequently, the Panel should take into consideration the difference between the dominant elements “lovers” and “devil”, which are terms that share no visual or aural similarities, and are completely distinct in meaning.