In the case of Jelique Products Inc. v. Cybarcafe, D2008-1255 (WIPO October 13, 2008), the WIPO panel was faced with a comparison of sexual products or ice cream. The disputed domain was www.tastytwist.com. The Complainant, which operates its business at www.jelique.com, has a trademark for TASTY TWIST, related to products designed to enhance sexual performance and pleasure, specifically in class 3 for body creams and lotions. The Respondent, on the other hand, contended that the domain name was registered for an ice-cream related invention, claiming that his family has been in the ice-cream business since 1953.
The Panel review the three prong test for UDRP decisions and found that the disputed domain was in fat identical or confusingly similar to Complainant’s mark. Despite producing an email showing an intent regarding the domain and ice-cream development, the Panel did not find sufficient evidence to support a claim of rights or legitimate interests.
In the last factor of analysis the Panel reviewed whether the domain was registered and used in bad faith. The Panel acknowledges, albeit very skeptically, the facts presented in Respondent’s story. However, as the Panel notes, the story would have more weight if the Respondent’s hadn’t registered the domain in June 2006, while only appearing to have come up with the invention in January 2008. The Panel also found concern that none of the materials presented by Respondent, which were designed to support his assertion that his family was in the ice-cream business for 40 years, actually identified any of his family members by name.
Regardless, the Panel explained:
However, the fact is that it is for the Complainant to prove that the Respondent was targeting the Complainant when he registered the Domain Name, not for the Respondent to prove his innocence and there is nothing of sufficient weight before the Panel to justify the Panel drawing inferences adverse to the Respondent.
Ultimately, the Panel found in favor of the Respondent and DENIED the transfer of the domain.
