Coachella Music Festival, LLC v. George Demetrious
Claim Number: FA1709001748204
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is George Demetrious (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vrcoachella.com> (‘the Domain Name’), registered with Tucows Domains Inc.
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 September 9, 2017; the Forum received payment on September 9, 2017.
On September 11, 2017, Tucows Domains Inc. confirmed by e-mail to the Forum that the <vrcoachella.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 11, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 2, 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@vrcoachella.com. Also on September 11, 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 October 3, 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. It owns, inter alia, the trade mark COACHELLA in the USA for organising and producing musical events, and uses that mark in connection with its festival, with first use in commerce recorded as 1999. It has a web site at www.coachella.com.
Respondent who is in no way affiliated with Complainant or the Coachella festival has used the web site attached to the Domain Name to misdirect consumers looking for Complainant’s festival to pay per click links.
The Domain Name is confusingly similar to Complainant’s trade mark merely combining it with the letters ‘VR” commonly used to mean Virtual Reality. Complainant began offering VR content related to its festival in 2016 via an iTunes app COACHELLA VR. The addition of terms that are related to Complainant or its services supports a finding of confusing similarity.
The addition of a gTLD is irrelevant to the confusing similarity analysis.
Respondent has no rights or legitimate interest in the Domain Name. Respondent is not known by the Domain Name. Complainant has not licensed Respondent to use Complainant’s COACHELLA marks. Pay per click advertisements are not bona fide use. The use is commercial so cannot be non commercial fair use.
Using a domain name identical or confusingly similar to a complaint’s mark to host a pay per click site is bad faith under Policy 4 (b)(iv).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns and produces the famous Coachella Valley Music and Arts Festival. It owns, inter alia the trade mark COACHELLA in the USA for organising and producing musical events and uses that mark in connection with its festival with first use in commerce recorded as 1999. It has a web site at www.coachella.com.
The Domain Name registered in 2016 has been used to host pay per click links that point to third party businesses not connected with 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 or Confusingly Similar
The Domain Name consists of Complainant’s COACHELLA mark (registered in the USA for entertainment services with first use recorded as 1999), the generic term ‘VR’ commonly used to designate ‘virtual reality’ and the GTLD .com. Complainant’s offers virtual reality services in relation to its entertainment services via an app called COACHELLA VR. Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underling mark held by Complainant). The Panel agrees that the addition of the generic term ‘VR’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy. In fact it may add to confusion as Complainant offers virtual reality services using COACHELLA VR.
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 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to 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 Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that Respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that Complainant had not licensed or authorized Respondent to use its ALASKA AIRLINES mark).
It is clear from the evidence that Respondent has used the sites attached to the Domain Names to provide links that promote third party goods and services which are not connected with Complainants.
It is clear from the content on the page attached to the Domain Name that Respondent was aware of the significance of the COACHELLA name and Complainant’s rights at the time of registration.
The usage of Complainant’s mark which has a significant reputation for entertainment services in relation to goods and services not connected with Complainant is not fair as the site does not make it clear that there is no commercial connection with Complainant. As such it cannot amount to the bona fide offering of goods and services. See Ashley Furniture Industries, Inc v domain admin/private registrations aktien gesellschaft, FA 1506001626253 (Forum July 29, 2015) (‘Respondent is using the disputed Domain Name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial 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 mark in this way. As such the Panelist 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 it to make profit by pointing the Domain Name to third party goods and services not associated with Complainants in a confusing manner. The combinations of marks and goods and services in the Domain Names makes it clear Respondent was aware of Complainant’s rights and business at the time of registration. It seems clear that the use of Complainant’s mark in the Domain Name would cause people to associate the website at the Domain Name with Complainant and its business and services. Accordingly, the Panellist holds that Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating likelihood of confusion with Complainants’ trade marks as to the source, sponsorship, affiliation or endorsement of the web site. See Williams-Sonoma, Inc v Fees, FA 937704 (Forum April 25, 2007)(holding that use of a confusingly similar domain name to display links to various third party websites demonstrated bad faith registration and use pursuant to Policy 4 (b)(iv).)
As such, the Panel believes that Complainant has made out their 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 <vrcoachella.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: October 10, 2017
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