Coachella Music Festival, LLC v. cunshuo zhang
Claim Number: FA1803001777859
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is cunshuo zhang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coschella.com>, registered with NameSilo, LLC.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 20, 2018; the Forum received payment on March 20, 2018.
On March 20, 2018, NameSilo, LLC confirmed by e-mail to the Forum that the <coschella.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 March 22, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 11, 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@coschella.com. Also on March 22, 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 April 14, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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, Coachella Music Festival, LLC, owns and produces the famous Coachella Valley Music and Arts Festival. Complainant owns registrations for its COACHELLA mark through the United States Patent and Trademark Office (e.g., Reg. No. 3,196,119 registered Jan. 9, 2007). Respondent’s <coschella.com> domain name is confusingly similar to Complainant’s COACHELLA mark as the domain name misspells the mark, and adds a generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interest in the disputed domain name. Further, Respondent is not commonly known by the domain name at issue based on the WHOIS information of record, and because Complainant has never granted permission, license, or authorization to Respondent for the use of its mark.
Respondent has registered and used the domain name in bad faith because the domain name is used to host a parking page.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <coschella.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 claims rights to its COACHELLA mark through registrations with the USPTO (e.g., Reg. No. 3,196,119 registered Jan. 9, 2007). Registration of a mark through the USPTO is sufficient to demonstrate rights to a mark. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Accordingly, the Panel foinds Complainant has rights in the COACHELLA mark.
Complainant argues Respondent’s <coschella.com> domain name is confusingly similar to its COACHELLA mark. A domain name that misspells a complainant’s mark and adds a gTLD does not usually distinguish the domain name for purposes of Policy ¶ 4(a)(i). See Coachella Music Festival, LLC v. Domain Administrator / China Capital Investment Limited, FA 1734230 (Forum July 17, 2017) (“The addition of letters—particularly of those that create a common misspelling—fails to sufficiently distinguish a domain name from a registered mark.”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Here, Complainant indicates Respondent’s <coschella.com> domain name misspells the COACHELLA mark by replacing one letter “a” with the letter “s.” Consequently, the Panel finds Respondent’s misspelling does not distinguish the domain name at issue from a finding of confusing similarity under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent has no rights or legitimate interests in the <coschella.com> domain name as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the COACHELLA mark. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). A privacy service was used by Respondent, but was lifted as a result of the commencement of this proceeding. The WHOIS information of record identifies Respondent as “cunshuo zhang.” Additionally, lack of evidence in the record to indicate that a complainant authorized respondent to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <coschella.com> domain name under Policy ¶ 4(c)(ii).
Complainant asserts Respondent is not using the <coschella.com> domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Use of a disputed domain name to host a parking page containing pay-per-click advertisements for a respondent’s presumed commercial gain does not represent a bona fide offer per Policy ¶ 4(c)(i) nor a noncommercial or otherwise fair use per Policy ¶ 4(c)(iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”); see also Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Gold Medal Travel Grp. plc v. Kruzicevic, D2007-1902 (WIPO Mar. 12, 2008) (where the disputed domain name had been parked, the panel found the “the Registrant is responsible for the content of the material appearing on the webpage associated with the domain name in dispute.”). Complainant provides screenshot evidence which Complainant maintains demonstrates Respondent’s use of the disputed domain name to host a parking page containing pay-per-click advertisements which redirect users to unrelated commercial services. The Panel finds Respondent’s use of the domain name is not in accordance with Policy ¶¶ 4(c)(i) and (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant asserts Respondent registered and uses the disputed domain name in bad faith. Panels have found the use of a domain name to host a parking page for a respondent’s presumed commercial gain as bad faith under Policy ¶ 4(b)(iv). See Vivint, Inc. v. Online Management, FA1403001549084 (Forum Apr. 23, 2014) (holding that the 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). Here, Complainant indicates Respondent’s domain name hosts a commercial parking page. The Panel finds Respondent’s use of the disputed domain name to host a commercial parking page establishes bad faith registration and use per Policy ¶ 4(b)(iv).
Complainant has proved this element.
DECISION
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 <coschella.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: April 18, 2018
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