Coachella Music Festival, LLC v. Mario Ramos
Claim Number: FA1810001810673
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Mario Ramos (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <brochella.vip>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 6, 2018; the Forum received payment on October 6, 2018.
On October 8, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <brochella.vip> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 October 8, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 29, 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@brochella.vip. Also on October 8, 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 November 1, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the COACHELLA mark to market and operate a prominent music festival.
Complainant holds a registration for the COACHELLA service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 3,196,119, registered January 9, 2007, renewed as of March 23, 2016.
Respondent registered the domain name <brochella.vip> on April 14, 2018.
The domain name is confusingly similar to Complainant’s COACHELLA mark.
Respondent has not been commonly known by the domain name.
Respondent is in no way affiliated with Complainant
Respondent has not been authorized to use Complainant’s COACHELLA mark in any fashion.
Respondent fails to use the domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use.
For commercial gain, Respondent attempts to attract Internet users to the domain name’s resolving website, which features pay-per-click advertisements.
Respondent lacks rights to and legitimate interests in the domain name.
Respondent had actual knowledge of Complainant’s rights in the COACHELLA mark prior to registering the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the COACHELLA service mark sufficient for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <brochella.vip> domain name is confusingly similar to Complainant’s COACHELLA mark. The mark contains a critical feature of the mark, but with the substitution of the letters “bro” (a slang contraction of “brother”) for the rhyming letters “coa” and the inclusion of the generic Top Level Domain (“gTLD”) “.vip.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.
See Lucasfilm Entertainment Company Ltd. LLC v George Ring, FA 1673825 (Forum June 7, 2016) (finding that, although a UDRP respondent’s domain name <lukasfilm.com> incorporated the LUCASFILM mark of another and merely substituted a phonetically identical ‘k’ for the ‘c,’ it was nonetheless confusingly similar to that mark).
See also Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum January 19, 2016) (concluding that the addition of a generic term and top level domain to the trademark of another in creating a domain name is inconsequential under a Policy ¶ 4(a)(i) analysis). This is because every domain name requires a gTLD.
Further see Altria Group, Inc. and Altria Group Distribution Company v. yu fan / fanyu, FA 1683563 (Forum August 18, 2016):
The disputed domain name corresponds to Complainant's … mark, adding only the ".vip" top-level domain, making it identical to Complainant's mark for purposes of paragraph 4(a)(i) of the Policy.
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the<brochella.vip> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <brochella.vip> domain name, and that Complainant has not authorized Respondent to use the COACHELLA mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Mario Ramos,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <brochella.vip> domain name to profit by employing it to host a commercial parking page featuring pay-per-click links. This use is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a domain name that was confusingly similar to the mark of another did not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether the links resolved to competing or unrelated websites or whether the respondent was itself profiting from click-through fees).
See also Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum August 20, 2015):
The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the challenged <brochella.vip> domain name, which we have found to be confusingly similar to Complainant’s COACHELLA service mark, to attempt to profit from the confusion thus caused among Internet users as to the possibility of Complainant’s affiliation with the domain name and its resolving website. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See, for example, Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Forum January 4, 2007) (finding that a respondent’s use of a domain name to maintain a pay-per-click site displaying links to the websites of enterprises unrelated to the business of a UDRP complainant, thus to generate click-through revenues, demonstrated bad faith registration and use of the domain name under Policy ¶ 4(b)(iv).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the COACHELLA mark when it registered the <brochella.vip> domain name. This too shows Respondent’s bad faith in registering the domain name. See Snap Inc. v. Deepika Priyadarshinie / entsl, FA 1788600 (Forum June 21, 2018) (finding that a respondent had knowledge of a UDRP complainant and its rights in a mark at the time it registered a confusingly similar domain name).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <brochella.vip> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: November 7, 2018
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