Coachella Music Festival, LLC v. Jack Collins
Claim Number: FA1705001731195
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, U.S.A. Respondent is Jack Collins (“Respondent”), California, U.S.A.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sendmetocoachella.com>, (‘the Domain Name’) registered with Domain.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 IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 11, 2017; the Forum received payment on May 11, 2017.
On May 11, 2017, Domain.com, LLC confirmed by e-mail to the Forum that the <sendmetocoachella.com> domain name is registered with Domain.com, LLC and that Respondent is the current registrant of the name. Domain.com, LLC has verified that Respondent is bound by the Domain.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 May 12, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 1, 2017 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@sendmetocoachella.com. Also on May 12, 2017, 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 June 5, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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’s contentions can be summarised as follows:
Complainant owns and produces the famous Coachella Valley Music and Arts Festival (‘Coachella’) held since 1999 and owns the COACHELLA trade mark registered in the USA and used in relation to the festival. It owns coachella.com.
Respondent is not affiliated with Complainant and uses the Domain Name to misdirect consumers looking for Complainant’s festival to a commercial parking web site hosting pay per click advertisements including relating to Complainant and its competitors.
Complainant’s rights in its COACHELLA marks predate the registration of the Domain Name by many years. The Domain Name is confusingly similar to Complainant’s mark COACHELLA as it merely combines it with the generic phrase ‘send me to’ and the gTLD .com which are insufficient to distinguish the Domain Name from the COACHELLA mark.
Respondent has no rights or legitimate interests in the Domain Name. Respondent is not known by it. Complainant has not authorised Respondent to use the Domain Name and Respondent has no legal relationship with Complainant that would allow Respondent to use the Domain Name. Use of a Domain Name containing a third party mark to host pay per click advertisements for competitors is not a bona fide offering of good or services or a non commercial fair use.
Respondent has registered and is using the Domain Name in bad faith. The Domain Name is obviously connected with Complainant and registration of it by a person not connected with the COACHELLA mark owner is bad faith.
Use in relation to parked pages as described above is intentionally attempting to attract Internet users to a web site by creating confusion as to the source, sponsorship, affiliation or endorsement of the site or a product on it falling within 4 (b)(iv) of the Policy.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the mark COACHELLA in the USA for entertainment services with first use recorded as 1999.
The Domain Name registered in 2017 has been used to point to pay per click advertisements including those of competitors of Complainant.
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 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 and/or Confusingly Similar
Complainant owns and produces the Coachella music festival and the COACHELLA registered trade mark in the United States. It owns coachella.com and has been operating its festival through predecessors since 1999.
The Domain Name consists of Complainant’s COACHELLA trade mark, the generic phrase ‘send me to’ and the gTLD.com. The addition of generic words does not serve to distinguish the Domain Name from Complainant’s mark. See Microsoft Corporation v Thong Tran Thanh, FA 1653187 (Forum Jan 21, 2016)(determining that confusing similarity exists where a disputed domain name contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top level domain). See also Trip Network Inc. v Alviera, FA 914943 (ForumMar. 27, 2007) concluding that the addition of a gTLD to a domain name is usually considered irrelevant to a Policy 4 (a)(i) analysis. Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
Respondent does not appear to be commonly known by the Domain Name. The WhoIs record lists Jack Collins as the registrant name. Complainant has not authorised Respondent to use Complainant’s mark.
It it is clear from the evidence that Respondent has used the site attached to the Domain Name for links to commercial sites which are not connected with Complainant, but compete in the field of concert services. It seems clear from the combination of generic words included in the Domain Name with Complainants’ marks and the nature of the pay per links leading to concert related services that Respondent was aware of the significance of the COACHELLA name and Complainants’ rights at the time of registration. The usage of Complainants’ marks (which have a significant reputation for Complainant’s services) in relation to competing services not connected with Complainants is not fair, as the site does not make it clear that there is no commercial connection with Complainants. As such it cannot amount to the bona fide offering of goods and services. See 24 Hour Fitness USA, Inc. V 24HourNames.com-Quality Domains for Sale, FA 187429 (Forum Sep 26, 2003)(holding that respondent’s use of the disputed domain names to redirect Internet users to a web site featuring advertisements and links to complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate non commercial or fair use). Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use Complainant’s trade marks in this way. As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
As determined above, Respondent's use of the site is commercial and he is using the Domain Name to make a profit by directing Internet Users to services not associated with Complainant in a confusing manner. The use in relation to pay per click links leading to competing concert services and to links also related to Complainant makes it clear Respondent was aware of Complainant’s rights at the time of registration. It seems clear that the use of Complainant’s mark in the Domain Name and on links on the page attached to the Domain Name would cause people to associate the website at the Domain Name with Complainant and its business and services. See Vivint, Inc v Online Management, FA 1403001549084 (Forum Apr 23, 2014)(holding that Respondent had registered and used the disputed domain name in bad faith according to Policy 4 (b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links). Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of the web site attached to the Domain Name or services advertised on it under paragraph 4 (b)(iv) of the Policy.
As such, the Panel believes that 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.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sendmetocoachella.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 16, 2017
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