Coachella Music Festival, LLC v. Vlad Hilliard / Citizen USA
Claim Number: FA1802001771791
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Vlad Hilliard / Citizen USA (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thecoachellas.com>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 13, 2018; the Forum received payment on February 13, 2018.
On February 14, 2018, Tucows Domains Inc. confirmed by e-mail to the Forum that the <thecoachellas.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 February 14, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 6, 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@thecoachellas.com. Also on February 14, 2018, 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 March 8, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it owns and produces the famous Coachella Valley Music and Arts Festival (“Coachella”), the USA’s premier music and arts festival. Held annually at the 78-acre Empire Polo Club in the beautiful Southern California desert, Coachella is one of the most critically acclaimed music festivals in the world. Attendance to the sold-out event aggregated over the multi-day festival is estimated at nearly 600,000 attendees. For the past several years, tickets to Coachella have typically sold out in about an hour. Coachella mixes some of the most groundbreaking artists from all genres of music along with a substantial selection of art installations from all over the world. The Festival attracts some of the world’s biggest mega-stars to perform. Complainant extensively promotes Coachella through a variety of media, including via the Internet, including and on numerous social media sites. Complainant has exclusive rights in the COACHELLA mark due to its trademark registrations in the United States in 2007.
Complainant alleges that the disputed domain name is confusingly similar to its COACHELLA mark as Respondent adds the generic word “the,” the letter “s,” and a “.com” generic top level domain (“gTLD”) to Complainant’s mark.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name as Respondent is not licensed or authorized to use Complainant’s COACHELLA mark and Respondent is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offer of goods and services or for a legitimate noncommercial or otherwise fair use. Instead, Respondent attempts to commercially benefit from user confusion as Respondent sells apparel, jewelry, and other goods in connection to Complainant’s photographs and COACHELLA mark.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to attract Complainant’s customers to its own web site at the disputed domain name in order to commercially benefit from user confusion.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for the name COACHELLA dating back to 2007.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2018.
Respondent is using the disputed domain name to resolve to a web site that displays Complainant’s trademark and photographs and that offers for sale products not related to 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 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.”).
The disputed domain name is confusingly similar to Complainant’s COACHELLA mark as Respondent merely adds a generic term, a letter, and a gTLD to the mark. Such changes to a complainant’s mark are insufficient to negate any confusing similarity between the disputed domain name and the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also LodgeWorks Partners, L.P. v. Isaac Goldstein / POSTE RESTANTE, FA 1717300 (Forum Apr. 5, 2017) (“The Panel agrees; Respondent’s <archerhotels.com> is confusingly similar to complainant’s ARCHER HOTEL mark.”). Therefore, the Panel finds that the <thecoachellas.com> domain name is confusingly similar to Complainant’s COACHELLA mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a Response is missing, WHOIS information can suffice to determine whether a respondent is commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Buff Exteriors, LLC v. gregg buffington, FA 1691787 (Forum Oct. 17, 2016) (holding that, when a respondent fails to submit additional evidence, the relevant WHOIS record may determine the name by which respondent is commonly known); see also Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). In the instant case, the WHOIS information of record identifies the registrant as “Vlad Hilliard / Citizen USA.” Thus, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent fails to use the disputed domain name in connection with a bona fide offer of goods and services or for a legitimate, noncommercial or otherwise fair use. Instead, Respondent diverts users seeking Complainant’s website to the <thecoachellas.com> domain name and commercially benefits from the confusion by offering goods for sale at the resolving website. Indeed, the resolving website features Complainant’s COACHELLA mark and photographs in connection to the sale of apparel, jewelry, and other goods related to music festivals like that of Complainant. Use of a disputed domain name to redirect users for a respondent’s commercial benefit is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent’s attempts to divert users to the disputed domain name for commercial benefit is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to intentionally create confusion between Complainant and Respondent for Respondent’s commercial benefit from the sale of goods. Use of a disputed domain name to intentionally create, and subsequently capitalize on, user confusion for a respondent’s commercial benefit may indicate bad faith registration and use per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum Jun. 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). Therefore, the Panel finds that Respondent’s diversion of users to the disputed domain name to commercially benefit demonstrates bad faith registration and use per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thecoachellas.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 8, 2018
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