Tinder, Inc v Raimundo Rodriguez Huter
WIPO Case: D2016-0726
This case is a useful example of a domain name dispute in the tech world where apps are fast being developed and imitations and competitors seek to capitalise on the market. It is an area where we are likely to see a growing number of disputes.
The Complainant, Tinder, Inc provides an online dating service through a mobile application or app. The app facilitates communication between users within the same location, allowing users to chat and organise dates. Tinder is among the first "swiping apps" where the user uses a swiping motion to choose between the photos of other users, swiping right for a good match and swiping left if there is no interest. In this case, the Complainant claims that the Respondent is using the disputed domain name <tinderbuster.com>
“ ...to leverage Tinder's popularity and trade on Tinder's good will to siphon ill gotten gains from Tinder's success”.
What this meant was that the domain name was being used to “offer a service consisting of charging people a fee to perform targeted searches for specific Tinder users by using their personal information...” and thus to “bust” them.
Tinder claimed that the Respondent's use of the disputed domain name to 'bust' Tinder users who may be cheating on their partners is not a bona fide offering of goods or services. The argument was that
“...the Respondent's use of "buster" in the disputed domain name in conjunction with the TINDER trademark evokes a negative connotation that is harmful to the Complainant. According to the Complainant, "busting" someone for an activity suggests that what the party is being "busted" for, is something the person should not be doing”.
The Panel held pursuant to paragraph 4(a)(i) of the Policy that the disputed domain name was confusingly similar to the Complainant’s trademark as it included the trademark TINDER in its entirety with the additional term "buster". It was up to the Respondent to meet its burden of production and provide a justification for the registration of the disputed domain name, in response to the Complainant’s claim that the Respondent had no rights or legitimate interests in the domain name. The Respondent however was in default and did not provide a response. The Panel therefore also found that the Respondent has no rights or legitimate interests in the disputed domain name
The Panel visited the website and found an offer was displayed on it for USD 4.99 for users to discover if someone else was using the Tinder app. The website listed the steps that a user had to follow to discover if someone else was using the Tinder app. The "buster" service required the input of the name, gender and location of the person being searched on the Tinder app and the name, email and password of the person requesting the search. The Panel found that based on this evidence, there was an unauthorised use of the TINDER trademark in the disputed domain name and that these activities constituted bad faith under paragraph 4(b)(iv) of the Policy. The result of the case was in effect a "busting" of the 'Tinder buster' which was bad faith.
Editor’s note and question: it is to be noted that the finding of bad faith was based on paragraph 4(b)(iv) of the Policy, namely an intent to cause confusion as to the affiliation of the trademark owner with what was displayed on the Respondent’s site. But could it really be said that the Respondent could have intended to confuse, or to have succeeded in confusing anyone, when it must have been obvious that Tinder, having set up a dating site, could hardly have then set up another site as a way of “busting” those who used it? Would it have been better for the finding to have been based on general bad faith, rather than one of the specific grounds set out in paragraph 4(b) of the Policy.