Coachella Music Festival, LLC v. Chris Brown
Claim Number: FA2009001914859
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Chris Brown (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cribchella.com>, <cribchella.net>, and <cribchella.org> (‘the Domain Names’), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 27, 2020; the Forum received payment on September 27, 2020.
On September 28, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <cribchella.com>, <cribchella.net>, and <cribchella.org> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 October 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 22, 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@cribchella.com, postmaster@cribchella.net, postmaster@cribchella.org. Also on October 2, 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.
On October 28, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 Names be transferred from Respondent to Complainant.
A. Complainant
Complainant’s contentions can be summarized as follows:
Complainant owns and produces the famous Coachella Valley Music and Arts Festival. It owns, inter alia, the trade mark COACHELLA in the USA in word and logo form for organizing and producing musical events and uses that mark in connection with its festival, first use in commerce recorded as 1999. It also owns the trade mark CHELLA also registered in the USA for the same services since 2018. It has a web site at www.coachella.com.
The Domain Names registered in 2020 are confusingly similar to the Complainant’s CHELLA mark adding only the generic term ‘crib’ and a gTLD – “.com”, “.net”, or “.org”, respectively – none of which prevents confusing similarity.
Respondent has no rights or legitimate interests in the Domain Names is not commonly known by them and is not authorized by the Complainant.
Respondent has used the <cribchella.com> domain name to promote its competing music festival using a font similar to the Complainant’s COACHELLA logo, and has used the <cribchella.net> and <cribchella.org> domain names to host commercial parking pages with pay per click links. These commercial uses are not a bona fide offering of goods and services as they trade on the goodwill of the CHELLA mark. They are registration and use in bad faith diverting Internet users for commercial gain and demonstrating a pattern of activity on the part of the Respondent.>>
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns and produces the famous Coachella Valley Music and Arts Festival. It owns, inter alia, the trade mark COACHELLA in word and logo form in the USA for organizing and producing musical events and uses that COACHELLA mark in connection with its festival, first use in commerce recorded as 1999. It also owns the trade mark CHELLA also registered in the USA for the same services since 2018. It has a web site at www.coachella.com.
The Domain Names were registered in 2020. Respondent has used the <cribchella.com> domain name to promote its competing music festival using a logo in a similar font to the Complainant’s COACHELLA logo, and has used the <cribchella.net> and <cribchella.org> domain names to host commercial parking pages with pay per click links.
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 Domain Names each consist of the Complainant’s registered CHELLA mark, the generic term ‘crib’ and a gTLD. Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underling mark held by the Complainant). The Panel agrees that the addition of the generic term ‘crib’ to the Complainant's mark does not prevent confusing similarity between each of the Domain Names and the Complainant's trade mark pursuant to the Policy.
The gTLDs “.com”, “.net”, and “.org” in each of the Domain Names respectively do not serve to distinguish any of the Domain Names from the CHELLA mark, which is the distinctive component of them. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of a gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Names are each confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its CHELLA mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Names. 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).
The use of the Domain Names is commercial and so cannot be legitimate noncommercial fair use.
The Respondent has used the site attached to <cribchella.com> to promote his on line music festival in competition with that of the Complainant using a similar font to the Complainant’s logo. The Panel finds this use is deceptive and confusing. As such it cannot amount to the bona fide offering of goods and services. See Glaxo Group Ltd. v. WWW Zban, FA 203164 (Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site).
The Respondent has used <cribchella.org> and <cribchella.net> to point to sites with commercial pay per click links. There is no indication that there is no authorization from the Complainant. The Panel finds this use confusing. As such it cannot amount to the bona fide offering of goods and services. See Ashley Furniture Industries Inc. v. domain admin /private registrations aitken Gesellschaft, FA 1506001626253 (Forum July 29, 2015) (linking to pay per click links does not amount to a bona fide offering of goods and services or a legitimate noncommercial fair use).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the Policy the site attached to <cribchella.com> is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it advertises a competing music festival using the Complainant’s distinctive mark CHELLA in a font similar to the Complainant’s COACHELLA logo. The use of a logo similar to that of the Complainant shows that the Respondent is aware of the Complainant, its business and rights.
Respondent is using the other domain names in this Complaint <cribchella.org> and <cribchella.net> to point to pay per click links to make profit from promoting goods and/or services not associated with the Complainant in a disruptive and confusing manner. See Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)).
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his websites by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web sites and goods or services offered on them likely to disrupt the business of the Complainant. See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”)
As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and 4 (b)(iii). The Panel also notes the registration of three domain names containing the Complainant’s trade mark by the Respondent which is also arguably a pattern of activity under ¶ 4(b)(ii) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cribchella.com>, <cribchella.net> and <cribchella.org> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: October 28, 2020
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