TORONTO — An arbitrator has sided with cheating-spouse dating site AshleyMadison.com in a cybersquatting case involving the domain name SMAshleyMadison.com.
Avid Dating Life, the parent company of AshleyMadison.com that holds trademarks for the brand, told the dispute resolution judge that SMAshleyMadison.com, registered in June by Erin Nemshick of Philadelphia, received revenue through pay per clicks offering sponsored links from competing dating sites and impeded on its operation.
AshleyMadison's parent had asked the arbitrator to order the site turned over to the dating site giant, which since its founding in 2001has seen steady gains in revenue, multiplying 18 times in the past six years to $63.6 million in the latest figures available for the year 2012.
Further, the dating giant claimed that SMAshleyMadison.com was a rip off of its domain name that included an addition — SM — in reference to "sado masochism."
But Nemshick, the owner of the domain, strongly denied that claim, arguing that the word “smashley” has established stand-alone meaning. He further contended that, at best, for AshleyMadison.com's case, the disputed domain name only rhymes with the complainant’s trademark.
"In connection with the word 'smashley' stand-alone meaning, the respondent presents evidence showing that the word 'smashley' means 'someone named Ashley who can’t hold her alcohol, a combination of the words 'smashed' and 'Ashley,'" the WIPO arbitrator said in his decision.
"The respondent argues that the complainant cannot claim rights in instances where 'Ashley' or 'Madison' are combined with other words," the arbitrator said. "The respondent also refers to Google searches for 'smashley madison,' stating that the only reference to Ashley Madison as a consequence of the above stated search was in the paid search results and that the results demonstrate that 'smashley' was a fairly common nickname and slang term."
However, in the end, the arbitrator ruled against Nemshick, deciding that he had registered and used the domain name in bad faith, and ordered the domain transferred.
