Coachella Music Festival, LLC v. Andrew Webrik
Claim Number: FA1609001694170
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Andrew Webrik (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coachella2017-tickets.com>, registered with EvoPlus 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 Forum electronically on September 17, 2016; the Forum received payment on September 17, 2016.
On September 19, 2016, EvoPlus Ltd. confirmed by e-mail to the Forum that the <coachella2017-tickets.com> domain name is registered with EvoPlus Ltd. and that Respondent is the current registrant of the name. EvoPlus Ltd. has verified that Respondent is bound by the EvoPlus 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 September 20, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 11, 2016 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@coachella2017-tickets.com. Also on September 20, 2016, 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 October 17, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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
Complainant has registered the COACHELLA mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,196,119, registered Jan. 9, 2007), and holds rights to the mark that it uses for selling concert tickets. Respondent’s domain name, <coachella2017-tickets.com>, is confusingly similar to Complainant’s mark because it merely adds the current year, “2017,” the term “tickets,” and the “.com” generic top-level domain (“gTLD”) to the Complainant’s wholly incorporated COACHELLA mark.
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized Respondent to use its COACHELLA mark, and Respondent is not commonly known as <coachella2017-tickets.com>. Further, Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to pass itself off as Complainant and unlawfully sell tickets to directly competitive musical events.
Respondent registered and is using the <coachella2017-tickets.com> domain name in bad faith. First, Respondent uses the domain name to unlawfully sell tickets to competing musical events. Second, Respondent uses the domain name in an attempt to pass itself off as Complainant. Third, Respondent had actual notice of the world famous COACHELLA mark when it registered the <coachella2017-tickets.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Coachella Music Festival, LLC, has rights to the COACHELLA mark through registration with the USPTO (e.g., Reg. No. 3,196,119, registered Jan. 9, 2007), and uses the mark for selling concert tickets. Respondent’s domain name, <coachella2017-tickets.com>, is confusingly similar to Complainant’s mark.
Respondent, Andrew Webrik, registered the <coachella2017-tickets.com> domain name on August 22, 2016.
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not authorized Respondent to use its COACHELLA mark. Respondent is not commonly known as <coachella2017-tickets.com>. Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to pass itself off as Complainant and sell tickets to directly competitive musical events.
Respondent registered and is using the <coachella2017-tickets.com> domain name in bad faith. First, Respondent uses the domain name to sell tickets to competing musical events. Second, Respondent uses the domain name in an attempt to pass itself off as Complainant. Third, Respondent had actual notice of the world famous COACHELLA mark when it registered the <coachella2017-tickets.com> domain name.
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(f), 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 (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 has rights to the COACHELLA mark under Policy ¶ 4(a)(i) based on registration with the USTPO. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <coachella2017-tickets.com> domain name is confusingly similar to Complainant’s COACHELLA mark under Policy ¶ 4(a)(i) as Respondent has merely added the year “2017,” the term “tickets,” and the “.com” gTLD. Also, Respondent’s domain name includes a hyphen.
Respondent has no rights or legitimate interests in the <coachella2017-tickets.com> domain name. Complainant has not authorized Respondent to use its COACHELLA mark. Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). The WHOIS information for the domain name lists “Andrew Webrik” as the registrant. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”).
Respondent is not using the <coachella2017-tickets.com> domain name to make a bona fide offering of goods and services under Policy ¶ 4(c)(i), or using it to make a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Respondent is using the domain name to sell tickets to competing musical events. Panels have found that a respondent’s use of a domain name confusingly similar to a complainant’s mark to sell products and/or services that are directly competitive with that complainant’s business is not a bona fide offering of goods and services or a legitimate noncommercial or fair use. See Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 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 only altered that use following a complaint by Complainant”); see also Fadal Engineering, LLC v. Strizich, FA 1581942 (Forum Nov. 13, 2014) (finding that Respondent’s use of the disputed domain to sell products related to Complainant without authorization “does not amount to a bona fide offering of goods or services under policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Complainant contends that Respondent uses the domain name to impersonate Complainant. Respondent’s resolving website includes the prominent use of the COACHELLA mark and the copying of Complainant’s copyright-protected graphics from Complainant’s official coachella.com website. A respondent lacks rights and legitimate interests in a domain name confusingly similar to a complainant’s mark where the respondent uses the domain name to pass itself off as that complainant. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
Respondent uses the <coachella2017-tickets.com> domain name to sell tickets to competing musical events. Panels have determined that a respondent’s use of a confusingly similar domain name to sell products and/or services that are directly competitive with a complainant’s business constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Dell Inc. v. Innervision Web Solutions, FA 445601 (Forum May 23, 2005) (finding evidence of bad faith under Policy ¶ 4(b)(iv) where the respondent was using the <dellcomputerssuck.com> domain name to divert Internet users to respondent’s website offering competing computer products and services). Therefore, the Panel finds that Respondent registered and is using the domain name in bad faith under Policy ¶ 4(b)(iv).
Respondent uses the domain name to pass itself off as Complainant. Respondent’s resolving website includes the prominent use of the COACHELLA mark and the copying of Complainant’s copyright-protected graphics from Complainant’s official coachella.com website. Therefore, Respondent registered and uses the <coachella2017-tickets.com> domain name in bad faith under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”).
Respondent had actual notice of Complainant’s rights in the COACHELLA mark when it registered the <coachella2017-tickets.com> domain name. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
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 <coachella2017-tickets.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 31, 2016
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