DECISION

 

Show-Me Tickets, Inc. c/o Brant Nathan Bukowsky v. Great Seats Co. Inc. c/o Robert Jones

Claim Number: FA0306000164377

 

PARTIES

Complainant is Show-Me Tickets, Inc. c/o Brant Nathan Bukowsky, Columbia, MO (“Complainant”). Respondent is Great Seats Co. Inc. c/o Robert Jones, Indianapolis, IN (“Respondent”) represented by Brett E. Osborne of The Osborne Law Firm.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <showmeticket.com> registered with Go Daddy Software, Inc.

 

PANEL

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.

 

William H. Andrews, Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on June 17, 2003; the Forum received a hard copy of the Complaint on June 23, 2003.

 

On June 17, 2003, Go Daddy Software, Inc. confirmed by e-mail to the Forum that the domain name <showmeticket.com> is registered with Go Daddy Software, Inc. and that the Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On June 27, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 17, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@showmeticket.com by e-mail.

 

A timely Response was received and determined to be complete on July 17, 2003.

 

On or about July 25, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed William H. Andrews as Panelist.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS                              

A. Complainant

Complainant contends that Respondent’s registration and use of the domain name violates ICANN Policy Par. 4.  Complainant alleges that the registered name is confusingly similar to the Show-Me Tickets name in which Complainant has rights, that Respondent has no rights or legitimate interests in the name and that the registration and use of the name was done in bad faith.

 

B. Respondent

Respondent does not contest that the domain name at issue is confusingly similar to Complainant’s mark.  Respondent does contend, however, that Complainant has failed to prove that Respondent had no rights or legitimate interests to the domain name <showmetickets.com>, or that Respondent registered and used the name in bad faith.

 

C. Additional Submissions

There were no additional submissions.

 

FINDINGS

Complainant is in the business of selling tickets for sports, theater and concerts nationwide and is commonly known by the name Show-Me Tickets. Complainant has used the name in business since 1997 and has registered it as a trademark.  Complainant registered the domain name, <showmetickets.com>, on or about December 19, 1998, and uses the domain name to sell its tickets.  Respondent’s company name is Great Seats Company, Inc.  On or about May 22, 2002, Respondent registered the domain name <showmeticket.com>.   The aforementioned site links to <racedaytickets.com>, which is operated by Respondent and which also sells tickets for sports, theater and concert tickets nationwide. 

 

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2)  the 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.

 

Identical and/or Confusingly Similar

 

Complainant contends the disputed domain name, <showmeticket.com>, is identical to and/or confusingly similar to Complainant’s mark.  Complainant’s business name is Show-Me Tickets.  Complainant is commonly known by that name, has used the same in business since 1997, and registered the domain name <showmetickets.com> in 1998.  These allegations are not contested by the Respondent.  Respondent does not deny that Complainant has rights in the name, nor does Respondent contend the domain name, <showmeticket.com>, is not confusingly similar to Complainant’s mark.  Respondent has completely incorporated Complainant’s mark with the exception of one letter. Applicable precedent clearly indicates that the addition or subtraction of one letter does not create a distinctive mark.  See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks).

 

Accordingly, the Panel concludes the domain name registered by Respondent is confusingly similar and/or identical to Complainant’s mark.

 

Rights or Legitimate Interests

 

Complainant argues Respondent has no rights or legitimate interests in the name <showmeticket.com>.  Specifically, Complainant contends Respondent has never been known by the name “showmeticket” in any variation.  Respondent argues that it has rights to use the name and further contends that by using the name to sell tickets, it engaged the name in connection with a bona-fide offering of goods and services.

 

Once Complainant asserts that Respondent has no rights or legitimate interests in respect of the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name.  See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000); See also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1 2002) (holding where a Complainant has asserted that Respondent has no rights or legitimate interests in the domain name it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”). Thus, following Complainant’s allegations and proof of its rights to the name, the burden fell to Respondent to establish its interest in the name. 

 

There is no evidence that Respondent was known by the name “showmeticket” at any time prior to its registration of the domain name.  Accordingly, paragraph 4(c)(ii) of the Policy does not apply.  Complainant argues that Respondent set up the site to divert consumers to Respondent’s competing business.  Respondent does not specifically deny the allegation that it used the name to direct consumers to its <racedaytickets.com> site, but insists that the word “ticket,” used in connection with Respondent’s business of selling tickets, is merely descriptive of the service Respondent provides.  Respondent, however, substantially incorporated Complainant’s entire mark, rather than just the generic term “ticket.”  Respondent contends that using Complainant’s name to link to Respondent’s site, where it sells competing goods, is permissible but provides no support for such a proposition.  To the contrary, such activity is not a bona-fide offering of goods or services pursuant to Policy par. 4(c)(i), nor is it legitimate non-commercial or fair use of a domain name as stated in Policy par. 4(c)(iii).  Clear Channel Communications, Inc. v. Beaty Enterprises, FA 135008 (Nat. Arb. Forum Jan.2, 2003); See also MBS Computers Ltd. v. Workman, FA 96632 (Nat. Arb. Forum Mar. 16, 2001)(finding no rights or legitimate interests when Respondent is using a domain name identical to Complainant’s mark and is offering similar services); see also Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO March 15, 2001), (finding no rights or legitimate interests where Respondent initially used the domain name at issue to resolve to a website where educational services were offered to the same market as that served by Complainant and later Respondent modified use of the domain name after receiving domain name Complaint; see also Kosmea Pty Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark).  As it was stated in America Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 12, 2000) (<icq502.com> and <icq520.com>), “it would be unconscionable to find a bona fide offering of services in a respondent’s operation of a website using a domain name which is confusingly similar to Complainant’s mark and for the same business.”

 

Accordingly, the Panel concludes that Respondent has no legitimate rights or interests to the domain name, <showmeticket.com>.

 

Registration and Use in Bad Faith

 

The Panel may consider a number of factors in reaching a determination on the question of bad faith including, but not limited to, those factors enunciated by paragraph 4(b) of the ICANN Policy.  Such factors include:

 

i) Whether there are circumstances indicating that Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of Respondent’s documented out of pocket costs directly related to the domain name; or

 

ii) Whether Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

 

iii) Whether Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

 

iv) Whether by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s web site or other on line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site or location or of a product or service on Respondent’s web site or location.

 

Policy par. 4(b) is non-exclusive and therefore, circumstances other than those listed in the policy of bad faith can meet the requirement set forth under Policy par. 4(a)(iii).  Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001).

 

On the submissions provided, the Panel concludes that the bad-faith element has been established.

 

The Complainant does business as Show-Me Tickets, Inc.  The Complainant is commonly known as Show-Me Tickets TM, and first used the same in its business in 1997. Complainant has registered Show-Me Tickets as a trademark, and registered the domain name <showmetickets.com> in 1998.  Respondent was at least constructively aware of Complainant’s mark.  See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002)(holding that there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”).    Respondent has never been known as Show-Me Tickets.  Respondent’s domain, <showmeticket.com>, was registered nearly three and one-half years after Complainant registered its site, and Respondent’s site links to <racedaytickets.com>, which offers the same services and products as Show-Me Tickets.  The conclusion that Respondent registered the site to attract Complainant’s prospective customers is inescapable. It is evidence of bad faith under Policy ¶ 4(b)(iv) when one tries to intentionally attract Internet users to its site for commercial gain by means of intentional confusion between a respondent’s domain name and a complainant’s mark.  See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000). 

 

Other panels have found that registration and use of a domain name to divert Internet users to web sites of competing organizations constituted bad faith use and registration.  Ticketmaster Corporation v. DiscoverNet, Inc., D2001-0252 (WIPO April 9, 2001); See eg Interactive Gallery, Inc. v. d communications, FA 94673 (Nat. Arb. Forum June 27, 2000); See also Household Int’l, Inc. v. Cyntom Enterprises, FA 95784 (Nat. Arb. Forum, Nov. 7, 2000) (“Just as the employment of a well-known business name for no particularly good reason undermines any claim of legitimate interest, so it may also support an inference of a bad faith attempt to use the name to harass or exploit the legitimate owner....Respondent, if he ever was serious in the registration of this domain name, must have relied on the good chance he would attract [Complainant’s] customers”); see also Computerized Sec. Sys., Inc. d/b/a SAFLOK v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003)  (finding that Respondent’s use of the <saflock.com> domain name to offer goods competing with Complainant’s illustrates Respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 WIPO Apr. 22, 2000) (finding bad faith where Respondent attempted to attract customers to its website, <efitnesswholesale.com>, and created confusion by offering similar products for sale as Complainant).

 

Respondent’s use of a domain name may also be considered an instance of “typosqatting,”  a practice which implicates the registration of a domain name that takes advantage of Internet users who inadvertently misspell the domain name of a trademark holder.  See National Association of Professional Baseball Leagues v. Zuccarini, D2002-1011 (WIPO, Jan. 21, 2003) and Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000).  Such a practice is evidence of bad faith.

 

The submissions indicate that Respondent was at least constructively aware of Complainant’s mark, and that Respondent has attempted to derive a pecuniary gain from use of Complainant’s name.  Respondent’s incorporation of Complainant’s mark clearly makes it likely that confusion will be caused by directing consumers looking for Complainant to Respondent’s site.  Accordingly, the Panel finds that Respondent’s actions contravene paragraph 4(b)(iv) of the Policy.

 

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <showmeticket.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

William H. Andrews, Panelist

Dated: August 6, 2003

 

 

 

 

 

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