Coachella Music Festival, LLC v. Mark Jardino
Claim Number: FA1506001626326
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Mark Jardino (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ticketscoachella.com> ('the Domain Name') , registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
<<Dawn Osborne of Palmer Biggs Legal>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 26, 2015; the Forum received payment on June 26, 2015.
On June 29, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <ticketscoachella.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 June 30, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 20, 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@ticketscoachella.com. Also on June 30, 2015, 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 July 27, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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.
A. Complainant
The Complainant owns and produces the famous Coachella Valley Music and Arts Festival and owns the COACHELLA, COACHELLA MUSIC FESTIVAL and COACHELLA VALLEY MUSIC AND ARTS FESTIVAL trade marks. Tickets to the festival are revocable licences which cannot lawfully be sold by third parties or even re-sold by the consumer. The first festival was held in October 1999. It has been held annually since 2001 and attendees are currently estimated as 500,000 a year.
Complainant owns US trade mark registrations for COACHELLA, both word mark and in stylized form and for COACHELLA VALLEY MUSIC AND ARTS FESTIVAL, registered for music events with first use claimed as 1999 and attendant common law rights.
The Domain Name is confusingly similar to the Complainant’s marks. It features the entire COACHELLA trade mark and merely adds the descriptive term 'tickets’ which does nothing to distinguish the Domain Name form the Complainant’s marks. The addition of a term related to the Complainant or its services supports a finding of confusing similarity. The addition of the generic gTLD is irrelevant.
Respondent has no rights or legitimate interest in the Domain Name. Complainant has not licensed or given permission to the Respondent to use its marks, nor does he have any legal relationship with the Complainant that would allow him to use it. There is no legitimate reason for using the Coachella marks as a dominant part of the subject domain name for a commercial web site. Where the Domain Name is used to offer competing goods and divert customers for the Complainant's site to the Respondent's site this is not a bona fide offering of goods and services. Respondent is not commonly known by the Domain Name.
Respondent, who is in no way affiliated with Complainant, has registered the Domain Name and has used it to misdirect consumers looking for the Complainant’s web site to the Respondent's commercial web site which sought to mislead consumers by displaying without authorisation Complainant's advertising posters for its festival and offering for sale unauthorised tickets to the festival. After receiving a cease and desist letter from the Complainant the Respondent now hosts a parking page advertising the Domain Name 'for sale'.
it is well settled that registration and commercial use of a domain name confusingly similar to a Complainant’s mark to redirect Internet users to a web site which offers goods in direct competition to Complainant’s goods and services satisfies the requirements of 4(b) (iv) of the Policy. The Respondent had actual knowledge of the Complainant and its marks as evidenced by the Respondents explicit use of the COACHELLA marks throughout his site.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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.”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's registered trade mark COACHELLA and the additional generic prefix 'tickets' which is a term related to the business in which the Complainant operates, namely musical events for which tickets are sold. Previous panels have found confusing similarity when a respondent adds a generic term to a Complainant's mark See Am. Express co., V Mustneed.com FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent's <amextravel.com> domain name confusingly similar to the Complainant's AMEX mark because the mere addition of a generic or descriptive word to a registered mark does not negate a finding of confusing similarity under Policy 4 (a)(i).) The Panelist agrees that the addition of the generic term 'tickets' to the Complainant's mark does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy.
The gTLD .com does not serve to distinguish the Domain Name from the COACHELLA mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v Haecke FA 726010 (Nat Arb 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 the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panelist holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panelist holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Complainant maintains that the Respondent is not using the Domain Name to offer bona fide goods and services and that the Complainant has not authorised the use of its mark. The Complainant contends that the site is set up for commercial benefit to compete with the Complainant using the latter's intellectual property rights.
The web site formerly attached to the Domain Name used the Complainant's trade mark COACHELLA in a prominent fashion and used advertising material of the Complainant's in a misleading way. The Respondent has used the site to promote goods and services in competition with those of the Complainant. It does not make it clear that there is no commercial connection with the Complainant. Indeed, it seems to go out of its way to make its site appear affiliated to the Complainant. The Panelist finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. (See Am. Intl Group Inc. v Benjamin FA 944242 (Nat. Arb. Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)
As such the Panel find that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Complainant also alleges that the Respondent’s use of the site is commercial and he is using it to make profit by competing with the Complainant in a confusing manner. In the opinion of the Panellist the use made of the Domain Name in relation to the site is confusing in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it began to offer the same services under a confusingly similar name after the Complainant had established rights in its name. The taking of advertising material of the Complainant's on the Respondent's web site shows that the Respondent is aware of the Complainant and is targeting it in bad faith. The manner of use also makes is very likely that visitors to the site at the Domain Name would think the site was associated with the Complainant. Accordingly, the Panellist holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site. (See Asbury Auto Group Inc. v Tex. Int'l Prop Assocs FA 958542 (Nat. Arb Forum May 29, 2007) finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use.)
As such, the Panellist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy (and there is no need to consider the additional factor that the Domain Name now appears to be for sale).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ticketscoachella.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: <<August 7, 2015>>
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