DECISION

 

Goldenvoice, LLC v. Alaa Moafy / the golden voice

Claim Number: FA1712001763210

PARTIES

Complainant is Goldenvoice, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA.  Respondent is Alaa Moafy / the golden voice (“Respondent”), Egypt.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <thegoldenvoice.net> (‘the Domain Name’), registered with Tucows Domains Inc..

 

PANEL

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 as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on December 17, 2017; the Forum received payment on December 17, 2017.

 

On December 18, 2017, Tucows Domains Inc. confirmed by e-mail to the Forum that the<thegoldenvoice.net> 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 December 18, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 8, 2018 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@thegoldenvoice.net.  Also on December 18, 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 January 12, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

 

Complainant produces live music events and manages numerous entertainment venues. It owns the exclusive rights to its GOLDENVOICE trade mark registered in the USA which it and its predecessors in interest have used in connection with such services for over 30 years.

 

Respondent who is in no way affiliated with the Complainant has registered the Domain Name to misdirect consumers looking for Complainant and its services to Respondent’s web site which provides links to various online commercial content imitating the Complainant’s web site, using pictures of large music festival events using the GOLDENVOICE mark to create the impression that Respondent and its web site is affiliated with Complainant.

 

The Domain Name features the entire GOLDENVOICE Mark as the dominant portion of the domain name, merely adding the word ‘the’ (which has been consistently found to satisfy the Policy on not preventing confusing similarity.)

 

The addition of the gTLD to the Domain Name is irrelevant to the confusingly similar analysis.

 

The Domain Name is confusingly similar to the Complainant’s GOLDENVOICE mark.

 

Respondent has no rights or legitimate interests in the Domain Name. Respondent is not known by the Domain Name. Searching on ‘the Golden Voice’ in Egypt where the Respondent is based produced no result. Complainant has not licensed Respondent to use its mark. The site impersonates the Complainant prominently using photography of live events and festivals and offering commercial content which cannot be a bona fide offering of goods and services or legitimate non commercial or fair use.

 

The Domain Name has been registered and used in bad faith under 4 (b)(iv) of the Policy because it is being used to create confusion for commercial gain between the Complainant and its mark and Respondent and its activities.

 

B. Respondent

 

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 

The Complainant owns the GOLDENVOICE mark registered, inter alia, in the USA for promoting concerts with first use in commerce shown as 1985.

 

The Domain Name, registered in 2017, has been used for a site offering commercial services not associated with the Complainant using pictures of large music events/festivals.

 

DISCUSSION

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:

 

 

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.”).

 

Identical or Confusingly Similar

 

The Domain Name consists of the Complainant's GOLDENVOICE mark (which is registered, inter alia, in USA for concert promotion services with first use recorded as 1985), the generic term ‘the’ and the gTLD .net. Previous panels have found confusing similarity when a respondent merely adds a generic term 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 the Complainant). The Panel agrees that the addition of the generic term ‘’the’  to the Complainant's mark does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy. In fact it may add to confusion as the use of ‘the’ can be interpreted as meaning the authentic or original and point to the Complainant as an established business of this name.

 

The gTLD .net does not serve to distinguish the Domain Name from the GOLDENVOICE  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 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 Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which the Complainant has rights.

 

As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.

 

Rights or Legitimate Interests

 

The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the 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 the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).

 

The web site to which the Domain Name redirects offers commercial services showing pictures of large music events such as those of the Complainant.  It does not make it clear that there is no commercial connection with the Complainant.  The Panel 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 (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 it is commercial it cannot be a legitimate non commercial or fair use.

 

As such the Panelist finds 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.

 

Registration and Use in Bad Faith

 

In the opinion of the panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it offers commercial services under a Domain Name containing the Complainant’s GOLDENVOICE mark and using pictures of large music events such as those of the Complainant.  The use of the Complainant's GOLDENVOICE word mark with pictures of large music events shows that it is highly likely that the Respondent was aware of the Complainant and its business at the time of registration.

 

Accordingly, the Panel 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 and the services on it, likely to disrupt the business of the Complainant. (See Asbury Auto Group Inc. v Tex. Int'l Prop Assocs  FA 958542 (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 registration and use).

 

As such, the Panelist 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 under para 4(b)(iv) and 4 (b)(iii).

 

DECISION

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

 

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

 

 

 

Dawn Osborne, Panelist

Dated:  January 15, 2018