Descriptive nature of domain means registrant not necessarily lacking rights or legitimate interests in domain.
Fling.com, an adult social network that facilitates hookups, has lost a domain name dispute over best-fling-sites.com.
According to Fling.com owner Global Personals, LLC, the registrant of the domain optimized it to show up high in search results when a user searches for the Fling.com site.
The company presented evidence that suggests the respondent was well aware of its site. But the panel agreed with the respondent that “fling” is a descriptive word that can commonly be used for adult hookup sites:
The Panel finds that the word or term “fling” is one which members of the public, including Respondent, may have wish to use on or in connection with adult dating services, or social networking community services more generally. Indeed, the Panel is of the view that they are entitled to do so as long as they do not infringe the particular rights covered by the above trademark registration(s) in accordance with the requirements of the Policy. In this regard, it is relevant to note that Respondent has added to the common descriptor “fling” the words “best” and “sites”. While these words are themselves descriptive, once combined in this way, a term with a quite different meaning emerges – namely a reference to “the best fling sites”. Such reference is both apt and appropriate for use in relation to an entity or website that reviews sites or services aimed at those interested in having a “fling” or in the wider community involved in such affairs.
The panel ruled that the complainant therefore had not proven that the respondent lacks rights or legitimate interests in the domain.
Think of it this way. If Home.com was an active web site, should it be able to take down best-home-sites.com through a UDRP?
That’s one of the challenges of using a highly descriptive/generic term.