Ticketweb Inc. v. Domains Ventures
Claim Number: FA0603000654538
Complainant is Ticketweb Inc. (“Complainant”), represented by Robert W. Sacoff, of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, 311 South Wacker Drive, Suite 5000, Chicago, IL 60606. Respondent is Domains Ventures (“Respondent”), 136 Xiaoxue Road, Xiamen, Fujian 361001, CN.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ticketwebb.com>, registered with Moniker Online Services, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 7, 2006; the National Arbitration Forum received a hard copy of the Complaint on March 9, 2006.
On March 13, 2006, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <ticketwebb.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On March 13, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 3, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@ticketwebb.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 6, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
Complainant is an online ticketing service that arranges ticket reservations for shows and entertainment events.
Complainant conducts its business primarily over the Internet through the domain name <ticketweb.com>, for which it has held the domain name registration since 1995.
Complainant owns valid trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the TICKETWEB mark registered August 12, 2003.
Respondent registered the <ticketwebb.com> domain name on January 6, 2004.
Respondent’s domain name resolves to a website offering links to other online ticket brokers which operate in direct competition with Complainant.
Respondent’s <ticketwebb.com> domain name is confusingly similar to Complainant’s TICKETWEB mark.
Respondent does not have any rights or legitimate interests in the <ticketwebb.com> domain name.
Respondent registered and uses the <ticketwebb.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights 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."
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(e), 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 (Nat. Arb. 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.”
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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s registration of its TICKETWEB trademark with
the USPTO establishes its rights in the mark pursuant to Policy ¶ 4(a)(i). See
VICORP Restaurants, Inc. v. Triantafillos, FA 485933 (Nat. Arb. Forum
July 14, 2005): “Complainant has established rights in the BAKERS SQUARE mark
by registering it with the United States Patent and Trademark Office
(“USPTO”).” See also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004): “Registration
of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”
Complainant has also demonstrated that Respondent’s <ticketwebb.com> domain name is confusingly similar to Complainant’s TICKETWEB mark. The disputed domain name incorporates Complainant’s mark in its entirety, adding only the redundant letter “b” and the generic top-level domain “.com” to the end of the mark. Such alterations do not negate the confusing similarity created between Respondent’s disputed domain name and Complainant’s mark. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to a complainant’s marks); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant must initially establish that Respondent lacks any rights and legitimate interests in the disputed domain name. However, once Complainant demonstrates a prima facie case, the burden shifts to Respondent to prove that it has rights or legitimate interests with respect to the domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once a complainant asserts that a respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue.”) See also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002): “Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”
The Panel finds that Complainant has sufficiently demonstrated a prima facie case, but will nonetheless evaluate the evidence of record to determine whether Respondent has rights or legitimate interests in the domain name under Policy ¶ 4(c).
The Panel finds no evidence in the record of this proceeding suggesting that Respondent is commonly known by the <ticketwebb.com> domain name. According to the WHOIS information, Respondent is identified as “Domains Ventures,” and there is no other evidence indicating that Respondent is commonly known by the domain name. Therefore, Respondent has not established rights or legitimate interests in the <ticketwebb.com> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” is a factor in determining that Policy ¶ 4(c)(ii) does not apply); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail.")
Moreover, Complainant alleges, and Respondent does not deny, that Respondent is using the <ticketwebb.com> domain name to operate a website providing links to third-party websites offering online ticketing services in direct competition with Complainant and that are not affiliated with Complainant. Such use of the disputed domain name by Respondent does not constitute either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that a respondent’s diversionary use of a complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003): “Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
It is undisputed that Respondent registered and is using the
<ticketwebb.com> domain name to operate a website featuring links
to websites for online ticket brokers who compete with Complainant’s ticketing
services business. Taking this into
consideration with the confusing similarity between Respondent’s disputed
domain name and Complainant’s registered mark, Internet consumers could easily
confuse Respondent’s website with a website operated by or affiliated with
Complainant. Consequently, the evidence
of record in this proceeding indicates that Respondent has intentionally attempted
to attract, for commercial gain, Internet users to its website by creating a
likelihood of confusion with Complainant’s mark as to the source, sponsorship,
affiliation, or endorsement of its website pursuant to Policy ¶ 4(b)(iv). See
G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum
Nov. 21, 2002) (finding that a respondent registered and used the domain name
in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the
confusingly similar domain name to attract Internet users to its commercial
website); see also Identigene,
Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith
where a respondent's use of a domain name to resolve to a website where similar
services are offered to Internet users is likely to confuse the user into believing
that a complainant is the source of or is sponsoring the services offered at
the site).
Finally under this heading, it is evident that Respondent
registered the contested domain name with either actual or constructive
knowledge of Complainant’s rights in the TICKETWEB mark by virtue of
Complainant’s prior registration of that mark with the pertinent authorities in
both the United States. Registration of
a confusingly similar domain name despite such actual or constructive knowledge
evidences bad faith registration and use of the domain name pursuant to Policy
¶ 4(a)(iii). See Digi Int’l v. DDI Sys.,
FA 124506 (Nat. Arb. Forum Oct. 24, 2002); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb.
Forum Oct. 4, 2002).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <ticketwebb.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 20, 2006
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