Key differences:
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The Respondent focuses on
Hike Private Limited v. Perfect Privacy LLC / Zcapital,
WIPO Case No. D2017-0902 (“the Zcapital case”) by way of its assertion that the Complainant is not the only person who could use “hike” or “hike app”. This case, in which the complainant was also the present Complainant, was however decided upon very different facts from the instant case. In the first place, the domain name concerned,
<hike.com>, had been registered many years before the Complainant’s rights came into being. The disputed domain name in the present case was created some six years after the launch of the Complainant’s app and two years after it marked the milestone of 100 million users. The Complainant in the Zcapital case was required, and failed, to show that the domain name concerned had recently undergone a material change in ownership. No such issue arises in the instant case.
Furthermore, in the Zcapital case, the Complainant was unable to show that the domain name at issue was registered with the Complainant’s mark in mind, given that the domain name consisted of the dictionary term “hike” and there was no significance arising from the TLD “.com”. The instant case is substantively different in that the use of the “.app” TLD gives rise to an immediate suggestion of targeting which is fortified and confirmed, on the balance of probabilities, by the proximity of the registration of another domain name featuring the brand of another well-known and popular app. This does not suggest an incidental use of a dictionary word or phrase and it does not surprise the Panel that the Respondent now offers to transfer that particular domain name to the rights owner concerned. Finally, in the Zcapital case, the panel found that the respondent’s registration of the relative domain name was “overwhelmingly more consistent” with its registration of a portfolio of generic domain names, a practice in which it had engaged for many years before the Complainant’s rights were established, than with any intention to target or take unfair advantage of the Complainant’s trademark. For the reasons outlined above, the Panel in the instant case considers that the facts and circumstances here point in the opposite direction.
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