Ticket Software, LLC v. Jiewei Li
Claim Number: FA1311001530834
Complainant is Ticket Software, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Jiewei Li (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue in this proceeding is <ticketliquidato.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 conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on November 20, 2013; the National Arbitration Forum received payment on November 20, 2013.
On November 20, 2013, GODADDY.COM, LLC confirmed by e-mail to the Nat-ional Arbitration Forum that the <ticketliquidato.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 November 21, 2013, the Forum served the Complaint and all Annexes, in-cluding a Written Notice of the Complaint, setting a deadline of December 11, 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, adminis-trative, and billing contacts, and to postmaster@ticketliquidato.com. Also on No-vember 21, 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 December 17, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant hosts an online marketplace for tickets to concerts, sports and theater events in the United States and globally.
Complainant holds a registration, which is on file with the United States Patent and Trademark Office (“USPTO”) for the TICKET LIQUIDATOR service mark (Registry No. 3,292,461, registered September 11, 2007).
Respondent registered the disputed <ticketliquidato.com> domain name no earlier than June 21, 2013.
The contested domain name is confusingly similar to Complainant’s TICKET LIQUIDATOR mark.
Respondent has not been commonly known by the disputed domain name.
Respondent is not sponsored by or affiliated with Complainant in any way.
Complainant has not given Respondent consent to use its TICKET LIQUIDATOR mark in a domain name.
Respondent uses the domain name to profit by redirecting Internet users to Complainant’s own website through Complainant’s affiliate program, from which use it illicitly receives commissions.
Respondent has no rights to or legitimate interests in respect of the disputed domain name.
Respondent has listed the disputed domain name for sale.
Respondent’s registration and use of the domain name is an instance of typo-squatting.
Respondent knew of Complainant and its rights in the TICKET LIQUIDATOR mark when it registered the disputed domain name.
The domain name was registered and is being used in bad faith.
Respondent has engaged in a pattern of registering and using in bad faith do-main names derived from the marks of others.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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 has rights in the TICKET LIQUIDATOR service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trade-mark authority, the USPTO. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006):
Complainant has established rights in the … mark through registration of the mark with the USPTO.
This is true without regard to whether Complainant’s rights in its mark arise from its registration in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here China). See, for example, Renais-sance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether a UDRP complainant has registered its trademark in the country in which a respondent resides, only that it can establish rights in its mark in some jurisdiction).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a re-view of the record that Respondent’s <ticketliquidato.com> domain name is con-fusingly similar to Complainant’s TICKET LIQUIDATOR service mark. The do-main name differs from the mark only by deletion of the space between the terms of the mark and a single character (the letter “r”) plus the addition of the generic Top-Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (finding the <pfzer.com> domain name confusingly similar to a UDRP complainant’s PFIZER mark, where a respondent merely omit-ted the letter “i” from the mark in creating the domain name).
See also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007):
Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that re-spondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been commonly known by the <ticketliquidato.com> domain name, that Respondent is not sponsored by or affiliated with Complain-ant in any way, and that Complainant has not given Respondent permission to use Complainant’s TICKET LIQUIDATOR service mark in a domain name. Moreover, the WHOIS information for the disputed domain name identifies the registrant only as “Jiewei Li.” On this record we conclude that Respondent has not been commonly known by the <ticketliquidato.com> domain name so as to have acquired rights to or legitimate interests in that domain name within the meaning of Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that a respondent failed to establish rights to or legitimate interests in the <emitmortgage.com> domain name where that respondent was not authorized to register domain names featuring a UDRP complainant’s mark and failed to submit evidence that it was commonly known by the domain name).
We next observe that Complainant contends, without objection from Respondent, that Respondent uses the <ticketliquidato.com> domain name to profit illicitly by the receipt of commissions for redirecting Internet users to Complainant’s web-site through Complainant’s affiliate program. This employment of the domain name is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See, for example, Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006), the panel there finding that a respond-ent’s use of disputed domain names to divert Internet users attempting to reach a UDRP complainant’s website in breach of that complainant’s affiliate program was neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use under Policy ¶ 4(c)(iii).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent has engaged in a pattern of registering and using in bad faith domain names derived from the marks of others. See Road Runner Sports, Inc. v. Jiewei Li, FA 1411522 (Nat. Arb. Forum Nov. 23, 2011); and Blue Nile, Inc. v. Jiewei Li, FA 1411371 (Nat. Arb. Forum Nov. 23, 2011). Under Policy ¶ 4(b)(ii), this pattern stands as evidence that the instant domain name has likewise been registered and is being used in bad faith. See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007), the panel there finding, under Policy ¶ 4(b)(ii), that a respondent’s pattern of behavior, as shown in prior UDRP proceedings, of registering and using do-main names based on the marks of others stood as evidence of bad faith in the case there in question.
We are also convinced by the evidence that Respondent uses the contested <ticketliquidato.com> domain name to profit illicitly from the receipt of com-missions by redirecting Internet users to Complainant’s website through Com-plainant’s affiliate program. This demonstrates bad faith in the registration and use of the domain name under Policy ¶ 4(b)(iv). See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding that a respondent registered and used the <deluxeform.com> domain name in bad faith under Policy ¶ 4(b)(iv) by employing it to redirect Internet users to a UDRP complain-ant’s website, thus receiving a commission from that complainant through its affiliate program).
In addition, it is evident that Respondent’s registration and use of a domain name that is a simple misspelling of Complainant’s TICKET LIQUIDATOR mark consti-tutes typo-squatting, i.e.: the deliberate creation of a domain name that is a com-mon misspelling of the mark of another in order to take advantage of typograph-ical errors made by Internet users in entering into their web browsers the marks of enterprises with which they wish to do business. Typo-squatting is independ-ent evidence of bad faith registration and use of a domain name. See, for ex-ample, Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003):
Respondent’s registration and use of … [the domain name] … that capitalizes on the typographical error of an Internet user is consid-ered typosquatting. Typosquatting itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
Finally under this head of the Policy, the evidence shows that Respondent knew of Complainant and its rights in the TICKET LIQUIDATOR service mark when it registered the <ticketliquidato.com> domain name. This too is proof of bad faith registration of the domain name. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where a respondent was "well-aware of” a UDRP complainant's YAHOO! mark at the time of its registration of a contested domain name).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is, hereby, GRANTED.
Accordingly, it is Ordered that the <ticketliquidato.com> domain name be forth-with TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 27, 2013
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