Ticket Software LLC v. Dealwave
Claim Number: FA1303001488215
Complainant is Ticket Software LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Dealwave (“Respondent”), Maryland, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tcketliquidator.com>, <ticketliquidatr.com>, <ticketliuidator.com>, <ticketlquidator.com>, and <ticktliquidator.com>, registered with Fabulous.Com Pty Ltd.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 1, 2013; the National Arbitration Forum received payment on March 1, 2013.
On March 4, 2013, Fabulous.Com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <tcketliquidator.com>, <ticketliquidatr.com>, <ticketliuidator.com>, <ticketlquidator.com>, and <ticktliquidator.com> domain names are registered with Fabulous.Com Pty Ltd and that Respondent is the current registrant of the names. Fabulous.Com Pty Ltd has verified that Respondent is bound by the Fabulous.Com Pty Ltd 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 March 18, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 8, 2013 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@tcketliquidator.com, postmaster@ticketliquidatr.com, postmaster@ticketliuidator.com, postmaster@ticketlquidator.com, and postmaster@ticktliquidator.com. Also on March 18, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 11, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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
i. Respondent has not been commonly known by the disputed domain name.
i. Respondent is a recalcitrant, serial cybersquatter/typosquatter.
ii. Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant.
iii. Respondent has registered and used the disputed domain names to attract and mislead consumers for its own profit.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Ticket Software LLC, hosts an online marketplace for event tickets to concert, sport, and theater events in the United States and globally. Complainant connects buyers and sellers with ticket inventory listings to various events worldwide. Complainant is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the TICKET LIQUIDATOR mark (Reg. No. 3,292,461, filed December 6, 2005, registered September 11, 2007).
The earliest date on which Respondent, Dealwave, registered the disputed domain names was June 9, 2006. Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with 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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant owns trademark registrations with the USPTO for the TICKET LIQUIDATOR mark (Reg. No. 3,292,461, filed December 6, 2005, registered September 11, 2007). The Panel finds that Complainant’s registration of the TICKET LIQUIDATOR mark with the USPTO demonstrates its rights in the mark under Policy ¶ 4(a)(i) effective December 6, 2005, the filing date of the trademark application. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also, The Hershey Company, Hershey Chocolate & Confectionery Corporation and Hershey Canada Inc. v. R. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007)(Complainant’s rights in the KISSES trademark date back to the filing date of the trademark application).
Complainant asserts that Respondent’s <tcketliquidator.com>, <ticketliquidatr.com>, <ticketliuidator.com>, <ticketlquidator.com>, and <ticktliquidator.com> domain names are confusingly similar to Complainant’s mark because they differ by only a single character from Complainant’s mark. Respondent has removed the letter “i,” “o,” “q,” or “e” in the disputed domain names. The removal of a letter in a disputed domain name does not distinguish Respondent’s domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”). Respondent adds the generic top-level domain (“gTLD”) “.com” to the disputed domain names which is inconsequential to a Policy ¶ 4(a)(i) analysis. See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Nat. Arb. Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Accordingly, the Panel finds that Respondent’s <tcketliquidator.com>, <ticketliquidatr.com>, <ticketliuidator.com>, <ticketlquidator.com>, and <ticktliquidator.com> domain names are confusingly similar to Complainant’s TICKET LIQUIDATOR mark pursuant to Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Complainant claims that Respondent has not been commonly known by the disputed domain name. The WHOIS record for the disputed domain names identifies “Dealwave” as the registrant. Complainant asserts that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant contends that it has not given Respondent permission to use Complainant’s mark in a domain name. The Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent uses the disputed domain names to host a web directory featuring competing and unrelated hyperlinks. The Panel concludes that Respondent’s use of the disputed domain names to host a web directory with competing and unrelated hyperlinks is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)).
Complainant argues that Respondent is a recalcitrant, serial cybersquatter/typosquatter. Complainant contends that searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of such behavior. CheapCaribbean.com, Inc. v. Dealwave, FA 1444419 (Nat. Arb. Forum June 12, 2012); Novartis AG v. Dealwave, FA 1419767 (Nat. Arb. Forum Jan. 27, 2012). Therefore, the Panel concludes that Respondent’s prior UDRP proceedings that resulted in findings of bad faith and transfer demonstrate bad faith use and registration under Policy ¶ 4(b)(ii). See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations).
Complainant claims that Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant. The Panel determines that Respondent’s use of the disputed domain names to offer competing hyperlinks disrupts Complainant’s business, evidencing bad faith use and registration under Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
Complainant asserts that Respondent has registered and used the disputed domain names to attract and mislead consumers for its own profit. Complainant argues that Respondent set up a “click through” website for which it likely receives revenue for each misdirected Internet users. The Panel finds that Respondent’s use of the disputed domain names to attract Internet users to its own website for commercial gain shows that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tcketliquidator.com>, <ticketliquidatr.com>, <ticketliuidator.com>, <ticketlquidator.com>, and <ticktliquidator.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 25, 2013
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