Coachella Music Festival, LLC v. Christina Marcelin
Claim Number: FA2005001895023
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Christina Marcelin (“Respondent”), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <haitianchella.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 5, 2020; the Forum received payment on May 5, 2020.
On May 6, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <haitianchella.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 11, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 1, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@haitianchella.com. Also on May 11, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. Respondent did however send an e-mail to the Forum, see below.
On June 8, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Preliminary Issue: Identity of Respondent
Respondent states that it no longer owns the disputed domain name, see below. Since the Forum had not received any further response from the named Respondent it proceeded with the Panel appointment. The Panel has taken the following rules and precedent into account in making a determination on not redacting Respondent’s identity.
According to Policy ¶ 4(j), “[a]ll decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.” In Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Forum May 19, 2005), the panels omitted the respondents’ personal information from the decisions, pursuant to Policy ¶ 4(j), in an attempt to protect the respondents who claimed to be victims of identity theft from becoming aligned with acts the actual registrants appeared to have sought to impute to the respondents.).
However, according to Forum Supplemental Rule 15(b), “All requests pursuant to Policy paragraph 4(j) and Rule 16(b) to have a portion of the decision redacted, must be made in the Complaint, the Response, or an Additional Submission that is submitted before the Panel’s decision is published.” (emphasis added). Rule 1 defines “respondent” as “the holder of a domain-name registration against which a complaint is initiated;” and Forum Supplemental Rule 1(d) further defines “the holder of a domain-name registration” as “the single person or entity listed in the WHOIS registration information at the time of commencement.” The Panel notes precedent which holds the registrar-confirmed registrant of a disputed domain (per the WHOIS at commencement of the proceeding) the proper respondent, notwithstanding the possibility that said respondent’s identity was stolen. See, e.g., Banco Bradesco S/A v. Gisele Moura Leite, D2014-0414 (WIPO Apr. 30, 2014).
In the instant case, there has been no request in the Complaint to redact any portion of the decision, nor has there been a Response or an Additional Submission. Consequently, the Panel finds that it is not warranted to redact Respondent’s name and location from the Panel’s decision.
A. Complainant
Complainant states that it owns and produces the famous Coachella Valley Music and Arts Festival, the United States’ premier music and arts festival. Held annually at the 78-acre Empire Polo Club in the beautiful Southern California desert, Coachella is one of the most critically acclaimed music festivals in the world. The first Coachella festival, held in October 1999, drew some 25,000 attendees into the California desert a few hours’ drive from Los Angeles, in Indio, California. Over the years1, both the festival’s attendance and its prominence within the music industry have grown. Attendance to the sold-out event aggregated over the multi-day festival is estimated at nearly 600,000 attendees. For the past several years, passes to Coachella have typically sold out in about an hour. Coachella mixes some of the most groundbreaking artists from all genres of music along with a substantial selection of art installations from all over the world. The Festival attracts some of the world’s biggest mega-stars to perform. The list of artists who have performed include: Beastie Boys, Beyoncé, Bjork, Coldplay, Daft Punk, Depeche Mode, Drake, Jane’s Addiction, Jay-Z, Kanye West, Madonna, Nine Inch Nails, Oasis, Paul McCartney, Prince, Radiohead, Rage Against the Machine, Red Hot Chili Peppers, Roger Waters, The Cure, The Pixies, and Tool, to list only a very few. To be sure, Coachella is about more than the music. The festival’s venue also includes camping facilities for some 15,000 attendees (complete with a karaoke lounge and a general store), and an amazing selection of food and beverages from a wide range of restaurants. Coachella also features an art exhibit which includes many pieces of art (including sculpture and so-called “interactive” art). Taken together, the music, the food, the art, and of course, the fellowship of other attendees, the Festival is more than just a concert to attend—it truly is an experience. Complainant claims rights in the CHELLA mark based upon registration in the United States in 2016.
Complainant alleges that the disputed domain name is confusingly similar to its CHELLA mark, as it contains the mark in its entirety, merely adding the geographic term “haitian” and the generic top level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s CHELLA mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent is using the disputed domain name to host a parking page that contains advertising links to products and services that are not related to Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and used the disputed domain name in bad faith. Respondent is attempting to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web site or location of a product or service on Respondent’s website or location. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the CHELLA mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its e-mail to the Forum, Respondent states:
I no longer own the domain name “Haitianchella”. You can confirm that with Godaddy. Furthermore, I feel my privacy rights were violated by you and Goddady as I paid for a private domain name service and the documents you sent over fully have my name, address, and former phone number. Instead of going after the little guys who have no idea Coachella owns the copy rights to “Chella”. You should discuss your options with the company selling the domain name to unaware consumers.
Complainant owns the mark CHELLA and uses it to market a music festival.
Complainant’s rights in its mark date back to 2016.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays advertising links to products and services that are not related to Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name incorporates Complainant’s mark in its entirety and merely adds the geographic “haitian” term and a gTLD. Incorporating a mark in its entirety and adding a geographic term along with a gTLD may be insufficient to overcome a finding of confusing similarity per Policy ¶ 4(a)(i). See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 85085 (Forum June 8, 2018) (finding “nationaleautorentalhaiti.com” confusingly similar to Complainant’s NATIONAL CAR RENTAL mark, and that the addition of the geographic term Haiti “is insufficient to distinguish the disputed domain name from the Complainant’s trademark”). Therefore, the Panel finds that the <haitianchella.com> is confusingly similar to Complainant’s CHELLA mark per Policy ¶ 4(a)(i).
Respondent is not licensed or authorized to use the CHELLA mark and is not commonly known by the disputed domain name: WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Here, the WHOIS information of record identifies Respondent as “Christina Marcelin”. The Panel therefore finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name resolves to a parking page that displays click-through advertisements for products and services that are not related to Complainant. The is not a bona fide offering of good or services or a legitimate noncommercial or fair use under the Policy. See Hard Rock Café International (USA), Inc. v. Ryhan Estate Vineyards, FA 35573 (Forum Jan. 14, 2009) (use of a confusingly similar domain name to resolve to a website displaying third-party links to unrelated websites is not a “a bona fide offering of goods and services”); see also Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Forum Sep. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain name). Therefore, Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the disputed domain name resolves to a parked page that contains advertising links to unrelated products and services. This is indicative of bad faith registration and use. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 16, 2007) (concluding that Internet users would likely be confused as to the source or sponsorship of the blackstonewine.com domain name with the complainant because the respondent was redirecting Internet users to a website with links unrelated to the complainant and likely receiving click-through fees in the process). Consequently, the Panel fins that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iv)).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <haitianchella.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 8, 2020
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