The case, argued before a WIPO arbitrator, allows TMD Swiss AG, a Switzerland-based online adult company that has E.U. trademarks for the “XLove and XLoveCam” names dating back to 2006, to take over the domain name.
For TMD Swiss, it is the third “XLove” cybersquatting case it has brought up against the domain holder and respondent in the case, Urucu Costinel Laurentiu of Zimnicea, Romania.
TMD Swiss, in each of the cases, contended that the domain names were confusingly similar to its mark and that they were registered in bad faith.
Arbitrator Matthew S. Harris noted in his ruling ordering the domain transferred that TMD Swiss, despite having its “XLove” trademarks lined up in arguments, could have lost the cybersquatting case.
“It is notable that the complainant fails in its complaint to identify for how long, and in what manner, and to what extent the complainant has used the mark,” he wrote. “In the circumstances, the panel was initially highly tempted to find against the complainant.
“It is incumbent on those who engage the policy and in particular professional advisors who advise and assist complainants, to properly address the requirements of the policy. This has not been satisfactorily done in this case.”
Nevertheless, Harris wrote he had “not given in to that temptation.”
“[I]t is reasonably clear that the parties in these proceedings operate and have operated competing adult websites,” he wrote “Further, it is reasonably clear from the [previous cybersquatting decisions] that the complainant — or more likely its predecessor in business — has used the term ‘XLove’ for these sorts of websites since at least 2010.”