Ticketmaster Corporation v. Senthil Kumar
Claim Number: FA0607000744436
PARTIES
Complainant is Ticketmaster Corporation (“Complainant”), represented by Robert W. Sacoff, of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, 311 South Wacker Drive, Suite 5000, Chicago, IL 60606. Respondent is Senthil Kumar (“Respondent”), 914 South Ave, Apt. B24, Secane, PA 19018.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <indiaticketmaster.com>,
registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on July 6, 2006; the National Arbitration Forum received a hard
copy of the Complaint on July 7, 2006.
On July 7, 2006, Melbourne It, Ltd. d/b/a Internet Names Worldwide
confirmed by e-mail to the National Arbitration Forum that the <indiaticketmaster.com> domain
name is registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide and
that the Respondent is the current registrant of the name. Melbourne It, Ltd. d/b/a Internet Names
Worldwide has verified that Respondent is bound by the Melbourne It, Ltd. d/b/a
Internet Names Worldwide 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 July 7, 2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of July 27, 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@indiaticketmaster.com by e-mail.
A timely Response was received and determined to be complete on July
26, 2006.
A timely Additional Submission from Complainant was received and
determined to be complete on July 31, 2006.
The Additional Submission complied with Supplemental Rule 7.
An Additional Submission from Respondent was received on August 3,
2006, prior to appointment of the Panel.
On August 3, 2005, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Richard Hill as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant alleges that it owns numerous valid and subsisting registrations for the TICKETMASTER Mark worldwide. Since at least as early as 1993, Complainant and its affiliates have been using the inherently distinctive TICKETMASTER Mark on or in connection with a wide variety of services, most notably, live event ticket sales, including live event ticket sales over the Internet. More specifically, the services offered include but are not limited to: accounting services for ticket sales rendered by computer; and, promoting sporting events, musical concerts and other entertainment events; ticket agency services for sporting events, musical concerts and other entertainment events, and on‑line ticket agency services for sporting events, musical concerts and other entertainment events.
Further,
Complainant states that it is the global leader in live event ticket
sales. Complainant provides tickets to
more than 350,000 events each year, including professional sports, arts,
family, concert and other events.
Complainant also serves more than 9,000 clients worldwide and acts as
the exclusive ticketing service for hundreds of leading arenas, stadiums,
performing arts venues, museums, and theaters.
It was the official ticketing supporter of the Athens 2004 Olympic
Games. In 2004, Complainant sold 98
million tickets valued at $5 billion through a network of approximately 3,300
retail Ticket Center outlets located in 210 cities in the United States,
Australia, Canada, the United Kingdom, Ireland, Northern Europe and Mexico,
more than 19 worldwide telephone call centers, the <www.ticketmaster.com>
web site and other Ticketmaster-branded Internet sites.
According to Complainant, as a result of its extensive marketing efforts, and the resulting widespread use of its services, the public has come to recognize and favorably associate the TICKETMASTER name and mark with Complainant’s services. Consequently, TICKETMASTER is a well-known and famous service mark and Complainant has come to own an enormously valuable goodwill symbolized by the TICKETMASTER Mark.
Respondent registered the Infringing Domain Name on May 22, 2005. The Infringing Domain Name is confusingly similar to the TICKETMASTER Mark because the Infringing Domain Name incorporates the entirety of the TICKETMASTER Mark. See Expedia, Inc. v. PMH Capital Ltd., FA 442294 (Nat. Arb. Forum Apr. 19, 2005) (finding that the domain name <expediacasino.com> incorporated the complainant's mark in its entirety and holding it to be confusingly similar to Expedia's marks); see also Expedia, Inc. v. Leisure Tours Int'l, FA 381271 (Nat. Arb. Forum Feb. 1, 2005) (finding that the domain name <expediaspringbreak> incorporated the complainant's mark in its entirety and holding it to be confusingly similar to Expedia's marks).
According to Complainant, Respondent Mr. Kumar is not known by the TICKETMASTER Mark and has not acquired any trademark or service mark rights in the TICKETMASTER Mark. And, as a result of the fame of the TICKETMASTER Mark, Complainant necessarily had actual knowledge of Ticketmaster's rights and was attempting to take advantage of the value and goodwill associated with the TICKETMASTER Mark when he registered the Infringing Domain Name.
According to Complainant, Respondent could not have registered the Infringing Domain Name with the intention of using it legitimately. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding the respondent's domain names to be "so obviously connected" to the complainant's that "use or registration by anyone other than complainant suggests 'opportunistic bad faith'").
The fame of the TICKETMASTER Mark, and Respondent’s attempt to trade off of the goodwill of the TICKETMASTER mark demonstrates his bad faith registration and use of the Infringing Domain Name under ICANN Policy ¶ 4(a)(iii).
The web site that resolves to the
Infringing Domain Name contains a series of generic links for topical searches
that list various third-party sites.
B. Respondent
Respondent alleges that the proposed use of the contested domain name
has no relation to any businesses being operated by Complainant. The contested domain name is expected to
draw customers based in India who want to purchase train and airline tickets
for travel within India. ‘India’ for
the geography and customer base, ‘Ticket Master’ for a term used in rural India
for any one that sells train tickets.
It is not intended to benefit from the TICKETMASTER trademark. On the contrary, according to Respondent,
the TICKETMASTER trademark is only likely to hurt his business plans because
people in India may confuse this with the domain that Complainant operates,
that is in supplying tickets for events.
Respondent states that he was unaware of Complainant’s presence and business
domain and that he has neither used their services nor those of any of their
competitors.
Further, says
Respondent, he does not expect
to benefit by utilizing the strength of any existing trademarks or brand names
and neither does he expect to use them for causing any damage to existing
businesses. He fails to understand the
claim of registering in bad faith when he is a common ordinary man trying to go
about his normal life. He had zero knowledge about
Complainant or its trademark. It looks
pitifully arrogant on their part to assert that every common man in the United States
must have knowledge about them or their business.
Regarding actual
use of the disputed domain name, Respondent states that the search site
referred to in the Complaint was placed by the registrar of this site. Respondent had no interest, commercial or
otherwise, in the place-holder page and it was not placed there on his request:
it is the default page placed by the registrar. The page was also not being used by him to direct visitors to any
specific business that may relate to any business similar to that of
TicketMaster. Since receiving this
Complaint, Respondent has explicitly asked the registrar to change it to an
‘Under Construction’ page.
C. Additional Submissions
Complainant notes that Respondent admits that he is a resident of the
United States of America. As such,
according to Complainant, he must have been aware of Complainant’s activities
and its famous mark. And, according to
Complainant, providing ticketing services for train or air travel is closely
related to Complainant’s activities, which is the ticketing business, of which
train and air tickets are a part.
Complainant provides evidence to dispute Respondent’s assertion that
“ticket master” is a term commonly used in India to refer to people who sell
train tickets.
Complainant notes that Respondent has admitted that use of the disputed
domain name is likely to cause some consumer confusion, since Respondent states
“the TICKETMASTER trademark is only likely to hurt my business plans because
people in India may confuse this with the domain that Complainant operates”.
Respondent clarifies that, although he is a resident of the USA, he is
neither a permanent resident nor a citizen.
He states that his intended use of the disputed domain name is for a
class of goods and services different from those offered by the Complainant.
Further, he disputes Complainant’s contentions and evidence regarding
the use of the term “ticket master” to refer to people selling tickets. However, he does not provide any evidence of
his own, and instead requests the Forum to undertake investigations regarding
the use of this term in India.
FINDINGS
Complainant owns the famous trademark
TICKETMASTER and uses it to provide ticketing services for a variety of events.
Respondent has no registered or common law
rights for the term “ticket master”.
The term “ticket master” is not a generic
description for a ticket-selling activity.
Respondent’s proposed use of the disputed
domain name could lead to consumer confusion.
The same holds for Respondent’s actual use of the disputed domain name.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a trademark
or service mark in which the Complainant has rights;
(2)
the 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.
It is obvious that the disputed domain name
is confusingly similar, for the purposes of the Policy, to Complainant’s
mark. See VeriSign, Inc. v. Tandon, D2000-1216 (WIPO Nov. 16, 2000)
(finding confusing similarity between the complainant’s VERISIGN mark and the
<verisignindia.com> and <verisignindia.net> domain names where the
respondent added the word “India” to the complainant’s mark).
The Respondent does not assert that he has registered or
common law rights for the term “ticket master”. And, on the basis of the evidence presented, the Panel concludes
that this term is not a generic term that describes the general activity of
selling tickets. Thus, the disputed
domain name cannot be held to be related to a generic description of a
legitimate activity.
Respondent has admitted that his proposed use
of the disputed domain name could lead to consumer confusion. Therefore, the proposed use of the disputed
domain name cannot be held to be legitimate in the sense of the Policy. As the panel stated in Motorola, Inc. v. NewGate Internet, Inc., D2000-0079 (WIPO, April 14, 2000):
[T]he
use of somebody else’s trademark as a domain name (or even as a meta-tag)
clearly does not constitute a “bona fide” offering of goods or services when
the web site owner has no registered or common law rights to the mark, since
the only reason to use the trademark as a domain name or meta-tag is to attract
customers who … were looking for the products or services associated with the
trademark. Such use of a trademark can
create customer confusion or dilution of the mark, which is precisely what
trademark laws are meant to prevent.
And actions that create, or tend to create, violations of the law can
hardly be considered to be “bona fide.”
See also Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting
customers, who are looking for products relating to the famous SEIKO mark, to a
website unrelated to the mark is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under
Policy ¶ 4(c)(iii).”).
The Panel finds that Complainant has
satisfied its burden of proving that Respondent has no rights or legitimate
interests in the disputed domain name.
It is difficult for the Panel to accept
Respondent’s assertion that he, a resident of the USA, had never heard of Complainant’s
famous mark or extensive activities, and that he registered the disputed domain
name in full innocence, especially in light of the evidence submitted by
Complainant to the effect that the term “ticket master” is not commonly used in
India to refer to people selling tickets.
Respondent requests the Panel to undertake
investigations regarding the use of this term.
But this request must be rejected, because it would not be appropriate
under the Policy. Indeed, UDRP Rule
5(b)(i) makes it clear that it is up to the Respondent to present such evidence
as he believes pertinent.
Further, Complainant has presented evidence,
not disputed by Respondent, to the effect that, at one time, the disputed
domain name was used to point to a web page offering searches related to the
disputed domain name, including searches for “entertainment” and “sports”,
which are areas in which Complainant is active.
In light of the above, the Panel agrees with
Complainant’s allegation that the registration and use of the disputed domain
name are in bad faith in the sense of the Policy, in particular with respect to
paragraph 4(b)(iv) of the Policy.
The Panel finds that Complainant has
satisfied its burden of proving that Respondent registered and is using the
disputed domain name in bad faith.
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <indiaticketmaster.com>
domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 17, 2006
Click Here to return
to the main Domain Decisions Page.
Click
Here to return to our Home Page
National Arbitration Forum