Coachella Music Festival, LLC v. Deepak Chaudhary
Claim Number: FA1810001811662
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Deepak Chaudhary (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <splashcoachella.org>, registered with GoDaddy.com, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 14, 2018; the Forum received payment on October 14, 2018.
On October 16, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <splashcoachella.org> 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 19, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 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@splashcoachella.org. Also on October 19, 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 9, 2018, pursuant to Coachella Music Festival, LLC’s request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant, Coachella Music Festival, LLC, owns and produces the famous Coachella Valley Music and Arts Festival, the country’s premier music and arts festival. Complainant has rights in the COACHELLA mark based upon registration of the mark with the United States Patent and Trademark Class (“USPTO”) (e.g. Reg. No. 3,196,129, registered Jan. 9, 2007). Respondent’s <splashcoachella.org>[i] domain name is confusingly similar to Complainant’s COACHELLA mark, as Respondent merely adds the term “splash” and the “.org” generic top-level domain (“gTLD”) to Complainant’s mark.
2. Respondent has no rights or legitimate interests in the <splashcoachella.org> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use the COACHELLA mark in any manner.
3. Respondent’s use of the domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to impersonate Complainant by copying Complainant’s website.
4. Respondent registered and is using the <splashcoachella.org> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the resolving website where it is passing off as Complainant’s website.
5. Moreover, Respondent had actual knowledge of Complainant’s rights in the COACHELLA mark prior to registering and subsequent use of the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the COACHELLA mark. Respondent’s domain name is confusingly similar to Complainant’s COACHELLA mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <splashcoachella.org> domain name and that Respondent registered and uses the domain name 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:
(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 has rights in the COACHELLA mark based upon registration with the USPTO (e.g. Reg. No. 3,196,129, registered Jan. 9, 2007). Registration of a mark with the USPTO is sufficient to establish rights in that mark under Policy ¶4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017). Therefore, the Panel finds Complainant has sufficiently established rights in the COACHELLA mark per Policy ¶4(a)(i).
Complainant next argues Respondent’s <splashcoachella.org> domain name is confusingly similar to the COACHELLA mark as the names contain the mark and merely adds the term “splash” and a “.org” gTLD. Adding a generic or descriptive term, and a gTLD, in a domain name to a mark in which a complainant has rights does not sufficiently mitigate any confusing similarity between the domain name and the mark in a Policy ¶ 4(a)(i) analysis. 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 PADI Americas, Inc. v. MPM Administration, FA 1783415 (Forum May 22, 2018) (finding the <padivacations.com> domain name to be confusingly similar to the complainant’s PADI mark: “the inclusion of the suggestive term “vacations” in the at-issue domain name only adds to any confusion between the domain name and Complainant’s trademark since the term suggests Complainant’s travel related services.”). The Panel holds that the <splashcoachella.org> domain name is confusingly similar to the COACHELLA mark per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <splashcoachella.org> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <splashcoachella.org> domain name as Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the COACHELLA mark in any way. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by a domain name. Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“[T]he pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies Respondent as “Deepak Chaudhary,” and no information in the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel holds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <splashcoachella.org> domain name.
Complainant further argues Respondent’s lack of rights and legitimate interests in the <splashcoachella.org> domain names is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant has shown that Respondent uses the <splashcoachella.org> domain name to impersonate Complainant as the resolving webpage is identical to Complainant’s website. Use of a domain name under the circumstances of this case to pass off as the Complainant may not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Complainant provides screenshots of the <splashcoachella.org> domain name’s resolving website and Complainant’s “splash” website” in support of its allegations. The Panel holds that Respondent does not have rights or legitimate interests in the <splashcoachella.org> domain name per Policy ¶¶ 4(c)(i) or (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims Respondent registered and uses the <splashcoachella.org> domain name in bad faith. Specifically, Complainant contends that Respondent’s bad faith is indicated by his attempt to use the <splashcoachella.org> domain name to pass off as Complainant and confuse consumers as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. This use is evidence of bad faith. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Thus, the Panel holds that Respondent has registered and used the domain name in bad faith per Policy ¶ 4(b)(iv).
Furthermore, Complainant asserts the Respondent registered the <splashcoachella.org> domain name with actual knowledge of Complainant’s rights in the COACHELLA mark prior to registration and subsequent use of the domain name. The Panel agrees that Respondent’s registration of a domain name that is nearly identical to the URL used by Complainant, and the copying of Complainant’s own website to impersonate Complainant demonstrates actual knowledge. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The Panel holds that Respondent had actual knowledge of Complainant’s rights in the COACHELLA mark, thus supporting bad faith per Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <splashcoachella.org> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: November 16, 2018
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