Ticket Software, LLC v. Pham Dinh Nhut
Claim Number: FA1502001603034
Complainant is Ticket Software, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Pham Dinh Nhut (“Respondent”), Ho Chi Minh City, Vitenam.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tickerliquidator.com> and <ticketliqidator.com>, registered with April Sea Information Technology Company Limited.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 2, 2015; the Forum received payment on February 2, 2015. The Complaint was received in both Vietnamese and English.
On February 6, 2015, April Sea Information Technology Company Limited confirmed by e-mail to the Forum that the <tickerliquidator.com> and <ticketliqidator.com> domain names are registered with April Sea Information Technology Company Limited and that Respondent is the current registrant of the names. April Sea Information Technology Company Limited has verified that Respondent is bound by the April Sea Information Technology Company Limited 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 February 18, 2015, the Forum served the Vietnamese language Complaint and all Annexes, including a Vietnamese language Written Notice of the Complaint, setting a deadline of March 10, 2015 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@tickerliquidator.com, postmaster@ticketliqidator.com. Also on February 18, 2015, the Vietnamese language 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 March 18, 2015 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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
1. Complainant uses the TICKET LIQUIDATOR mark to distinguish itself as an online marketplace for event tickets to concert, sport, and theater events in the United States and globally. Complainant has registered the TICKET LIQUIDATOR mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,292,461, registered September 11, 2007; filed December 6, 2005), which demonstrates its rights in the mark.
2. The <tickerliquidator.com> and <ticketliqidator.com> domain names are confusingly similar to the TICKET LIQUIDATOR mark as they are simple misspellings of the mark.
3. Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names or any variation thereof, and has not received authorization from Complainant for the use of the TICKET LIQUIDATOR mark. Further, Respondent is not making a bona fide offering of goods or services through the disputed domain names, nor a legitimate noncommercial or fair use. Instead, the disputed domain names resolve to web pages featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent is presumably receiving pay-per-click fees from these links.
4. Respondent has used the <tickerliquidator.com> and <ticketliqidator.com> domain names in bad faith. Respondent’s use of third-party links on the resolving pages constitutes a disruption of Complainant’s business. Respondent is utilizing click-through fees to profit from Complainant’s well known mark to wrongfully achieve commercial gain. Respondent’s use of the disputed domain names constitutes typosquatting behavior. Respondent is a serial cybersquatter / typosquatter.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Preliminary Matter: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Vietnamese, thereby making Vietnamese the language of the proceedings. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Vietnamese language Complaint and Commencement Notification, and, absent a Response, concludes that the remainder of the proceedings may be conducted in English.
Complainant is Ticket Software, LLC of South Windsor, CT, USA. Complainant is the owner of domestic registrations for the mark TICKET LIQUIDATOR, which it has used continuously since at least as early as 2005 in connection with its provision of an online marketplace for ticket purchases to entertainment events throughout the world. Complainant facilitates its business operation principally through its website <ticketliquidator.com>.
Respondent is Pham Dinh Nhut of Ho Chi Minh City, Vietnam. Respondent’s registrar’s address is listed as the same location. The Respondent registered the <tickerliquidator.com> domain name on or about February 2, 2006; and the <ticketliqidator.com> domain name on or about August 27, 2004.
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 claims that Respondent’s <ticketliqidator.com> domain name is confusingly similar to the TICKET LIQUIDATOR mark per Policy ¶ 4. Complainant is the registered owner of the TICKET LIQUIDATOR mark through its trademark registrations with the USPTO (e.g., Reg. No. 3,292,461, registered September 11, 2007; filed December 6, 2005). The Panel finds that Complainant’s registration confers rights in the mark dating at least as far back as December 6, 2005, the date on which Complainant first filed for trademark protection with the USPTO. See Thompson v. Zimmer, FA 190625 (Nat. Arb. Forum Oct. 27, 2003) (“As Complainant’s trademark application was subsequently approved by the U.S. Patent and Trademark Office, the relevant date for showing ‘rights’ in the mark for the purposes of Policy ¶ 4(a)(i) dates back to Complainant’s filing date.”). The Panel notes that Respondent’s August 27, 2004 registration of the <ticketliqidator.com> domain name predates Complainant’s earliest USPTO filing. Prior panels have found, however, that complainants do not need to own valid trademark registrations in order to demonstrate rights in a mark under Policy ¶ 4(a)(i). Instead, a complainant may establish its rights in the mark through common law rights. See Winterson v. Hogarth, D2000-0235 (WIPO May 22, 2000) (finding that the Policy does not require that a complainant’s trademark be registered by a government authority or agency in order for the complainant to establish rights in the mark).
Previous panels have also held that complainants may establish a common law trademark through evidence such as the manner and amount of promotion of goods available under the mark, the extent of complainant’s use of the mark, and degree of consumer recognition, all of which contribute to the establishment of a secondary meaning in a mark. See Yarosh Brothers, LLC v. Junk My Cars, FA 1048718 (Nat. Arb. Forum Sept. 12, 2007) (“The Panel finds by virtue of the commercial popularity and success of the domain name Complainant operated under the JUNKMYCAR mark, that Complainant has established common law rights in the JUNKMYCAR mark pursuant to Policy ¶ 4(a)(i).”). Complainant contends that it has used the TICKET LIQUIDATOR mark in connection with its <ticketliquidator.com> website, which Complainant registered in 2002. Complainant has provided evidence of media and press coverage of its business operations dating back to 2002. Further, since the website’s inception, Complainant asserts it has enjoyed much commercial success and recognition, having sold over 3.2 million tickets for over 60,000 events worldwide. In light of the recognition from media and consumers alike, as well as Complainant’s use of the mark since 2002, the Panel finds that Complainant has established common law rights in the TICKET LIQUIDATOR mark dating back to 2002 for the purposes of Policy ¶ 4(a)(i).
Complainant argues that the <tickerliquidator.com> and <ticketliqidator.com> domain names are confusingly similar to the TICKET LIQUIDATOR mark. Specifically, Complainant argues that the disputed domain names contain simple misspellings of the mark: substituting an “r” for a “t” in <tickerliquidator.com>, and the elimination of the “u” in <ticketliqidator.com>. The panel in Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000), found that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive. Further, Complainant contends that the addition of the generic top-level domain (“gTLD”) “.com” is irrelevant to the confusingly similar analysis. Prior panels have determined that a disputed domain name comprised of a misspelling of a mark, and the addition of a gTLD, is confusingly similar to the incorporated mark. See Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Nat. Arb. Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”). The Panel notes that the deletion of spacing in a disputed domain name has not been found to be persuasive in Policy ¶ 4(a)(i) analysis. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). The Panel here finds that the <tickerliquidator.com> and <ticketliqidator.com> domain names are confusingly similar to the TICKET LIQUIDATOR mark because they differ from the mark by only one letter, have eliminated the space between words in the mark, and have added the gTLD “.com.”
The Complainant has proven this element.
The Panel recognizes that 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), 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). The Complainant has met this burden.
Complainant contends that Respondent is not commonly known by the <tickerliquidator.com> and <ticketliqidator.com> domain names. The Panel notes that the WHOIS record identifies “Pham Dinh Nhut” as the registrant of the disputed domain names. Complainant asserts that it has not given Respondent any authorization to make use of the TICKET LIQUIDATOR mark in any form or fashion. The Panel also notes that Respondent has failed to submit a response in this proceeding. In light of Complainant’s assertions and Respondent’s failure to provide any evidence to the contrary, the Panel finds that Respondent is not commonly known by the <tickerliquidator.com> and <ticketliqidator.com> domain names pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute); see also IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Further, Complainant argues that Respondent is not using the disputed domain names for a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Complainant states that the <tickerliquidator.com> and <ticketliqidator.com> domain names resolve to pages displaying numerous third-party links, some of which resolve to Complainant’s competitors’ websites, such as “Concerts Tickets,” “Front Row Tickets.com,” and “Event Tickets.” Respondent is presumably receiving click-through fees for these links as well. The Panel finds Respondent’s apparent use of the disputed domain names is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use per 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.).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant argues that Respondent is a serial cybersquatter / typosquatter. Complainant notes that searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of such behavior. See e.g., The Royal Bank of Scotland Group plc v. Vietnam Domain Privacy Services, FA 1378748 (Nat. Arb. Forum Apr. 16, 2011); Higher Education Loan Authority of the State of Missouri (MOHELA) v. To Thi Thanh Tam / Vietnam Domain Privacy Services, D2014-1602 (WIPO Nov. 7. 2014). The Panel finds that multiple prior UDRP decisions rendering findings against the same Respondent indicate that Respondent’s 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 asserts that Respondent’s use of third-party links in the resolving pages of the disputed domain names that direct Internet users to web pages of Complainant’s competitors constitutes Policy ¶ 4(b)(iii) bad faith disruption. The Panel again notes that the competing links include the following: “Concerts Tickets,” “Front Row Tickets.com,” and “Event Tickets.” Past panels have found respondents’ attempts to divert Internet users and consumers towards third-party websites in direct competition with complainants, constitute bad faith. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)). This Panel here finds that Respondent’s use of the <tickerliquidator.com> and <ticketliqidator.com> domain names to divert Internet users to third-party websites that compete with Complainant is a bad faith disruption per Policy ¶ 4(b)(iii).
Complainant contends that Respondent is presumably receiving pay-per-click fees from the third-party links maintained on the resolving pages of the disputed domain names. The Panel finds that Respondent’s attempt to commercially benefit from the confusion generated by the strong similarity of the domain names to Complainant’s mark evinces bad faith pursuant to Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Complainant additionally argues that Respondent’s actions constitute Policy ¶ 4(a)(iii) typosquatting. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel here finds that the changes to Complainant’s TICKET LIQUIDATOR mark by Respondent’s registering the <tickerliquidator.com> and <ticketliqidator.com> domain names constitute typographical errors and is evidence of typosquatting behavior per Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <tickerliquidator.com> and <ticketliqidator.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: April 1, 2015
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