Ticketmaster Corporation v. Gitrdonegang
Claim Number: FA0608000783217
Complainant is Ticketmaster Corporation (“Complainant”), represented by Robert
W. Sacoff, of Pattishall, McAuliffe, Newbury, Hilliard
& Geraldson LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ticketmasterexchange.com>, registered with Go Daddy Software, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 22, 2006; the National Arbitration Forum received a hard copy of the Complaint on August 25, 2006.
On August 23, 2006, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <ticketmasterexchange.com> domain name is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 August 25, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 14, 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@ticketmasterexchange.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 20, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
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:
1. Respondent’s <ticketmasterexchange.com> domain name is confusingly similar to Complainant’s TICKETMASTER mark.
2. Respondent does not have any rights or legitimate interests in the <ticketmasterexchange.com> domain name.
3. Respondent registered and used the <ticketmasterexchange.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ticketmaster Corp., specializes in live event ticket sales and the goods and services Complainant offers under the TICKETMASTER mark include accounting services for ticket sales rendered by computers, event promotion, and general ticket agency services including the sale of tickets to sporting events, musical concerts and many other entertainment events. Complainant holds multiple registrations with the United States Patent and Trademark Office (“USPTO”) for the TICKETMASTER mark (Reg. No. 1,746,016 issued January 12, 1993; Reg. No. 2,643,508 issued October 29, 2002). Recently, Complainant began offering a new service using the TICKET EXCHANGE mark which facilitates safe and secure fan-to-fan ticket exchange transactions. Complainant has registered the <ticketmaster.com> and <ticketexchange.com> domain names in order to operate its website which provides Internet users the opportunity to access Complainant’s goods and services online.
Respondent registered the <ticketmasterexchange.com> domain name on January 31, 2006. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website which is composed of numerous links to third-party websites and a generic Internet search engine. Many of the links posted on Respondent’s webpage are for the commercial websites of Complainant’s competitors, including <eventticketdirectory.com>, <ticket-center.com> and <stubhub.com>. Respondent’s website also includes a notice offering the disputed domain name for sale for $195.
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:
(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.
Complainant’s first registration of the TICKETMASTER mark with the USPTO predates Respondent’s registration of the disputed domain name by more than ten years. The Panel finds that Complainant’s registration of the mark establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <ticketmasterexchange.com> domain
name is confusingly similar to Complainant’s TICKETMASTER mark. The disputed domain name includes
Complainant’s mark in its entirety with the addition of the term
“exchange.” The term “exchange” has a
significant relationship with Complainant’s business as used by Complainant in
connection with its new fan-to-fan ticket exchange service, marketed under the
TICKET EXCHANGE mark. The addition of a
term descriptive of Complainant’s business to Complainant’s mark does not
overcome the confusing similarity between the disputed domain name and
Complainant’s mark. The Panel finds that
the disputed domain name is confusingly similar to Complainant’s mark pursuant
to Policy ¶ 4(a)(i).
See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6,
2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s
registered mark is sufficient to establish identity [sic] or confusing
similarity for purposes of the Policy despite the addition of other words to
such marks.”); see also Brown & Bigelow, Inc. v. Rodela, FA 96466
(Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain
name is confusingly similar to the complainant’s HOYLE mark, and that the
addition of “casino,” a generic word describing the type of business in which
the complainant is engaged, does not take the disputed domain name out of the
realm of confusing similarity).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights or
legitimate interests in the disputed domain name. Under the Policy, Complainant’s assertion
creates a prima facie case and shifts the burden to Respondent to
demonstrate that it does have rights or legitimate interests pursuant to Policy
¶ 4(a)(ii).
Respondent has the opportunity to present the Panel with evidence or
arguments in support of its rights or legitimate interests in a Response. The Panel views Respondent’s failure to
submit such a Response as evidence that Respondent lacks rights or legitimate
interests. See 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).”); see
also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”).
Nonetheless, the Panel will examine the available evidence to determine
whether Respondent has rights or legitimate interests in the <ticketmasterexchange.com>
domain name as contemplated by Policy ¶ 4(c).
Respondent is using the <ticketmasterexchange.com> domain name to operate a website populated with links to third-party websites, many of which are commercial websites in competition with Complainant. Internet users are redirected to Respondent’s website because of the confusing similarity between the disputed domain name and Complainant’s mark. Presumably, when Internet users click on the links posted on Respondent’s website, Respondent receives pay-per-click referral fees. Because Respondent’s website fails to offer anything other than third-party links, Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(i). Nor is Respondent using the disputed domain name in connection with a legitimate noncommercial or fair use as contemplated by Policy ¶ 4(c)(iii) because Respondent is presumably profiting when Internet users click on the links posted on Respondent’s website. Thus, the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name pursuant to Policy ¶¶ 4(c)(i) and (iii). See also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the 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 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Additionally, there is no available evidence indicating that
Respondent is commonly known by the disputed domain name. Respondent’s WHOIS information identifies
Respondent as “gitrdonegang,” a name with no apparent relationship to the
disputed domain name. Complainant also
asserts without contradiction that Respondent is not affiliated with
Complainant and does not have permission from Complainant to Reflect
Complainant’s mark in a domain name.
Thus, the Panel finds that Respondent lacks rights or legitimate
interests pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee
Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in
Respondent’s WHOIS information implies that Respondent is ‘commonly known by’
the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii)
does not apply); see also
Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14,
2000) (finding no rights or legitimate interest where the respondent was not
commonly known by the mark and never applied for a license or permission from
the complainant to use the trademarked name).
Furthermore, Respondent has indicated on its website that
the disputed domain name is for sale for $195.
Respondent’s willingness to sell the domain name is further evidence
that Respondent has rights or legitimate interests in the disputed domain
name. See Mothers Against Drunk
Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) (holding
that under the circumstances, the respondent’s apparent willingness to dispose
of its rights in the disputed domain name suggested that it lacked
rights or legitimate interests in the domain name); see also Wal-Mart Stores, Inc. v. Stork,
D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to
sell the domain name suggests it has no legitimate use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has posted a notice on its website offering the <ticketmasterexchange.com> domain name for sale for $195. The Panel finds that Respondent’s attempt to sell the disputed domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i). See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale); see also Banca Popolare Friuladria S.p.A. v. Zago, D2000-0793 (WIPO Sept. 3, 2000) (finding bad faith where the respondent offered the domain names for sale).
Respondent is using the <ticketmasterexchange.com> domain name to redirect Internet users to Respondent’s website filled with links to third-party websites, many of which are commercial websites in competition with Complainant. Internet users redirected to Respondent’s website while trying to find Complainant’s genuine website may follow the available third-party links and do business with one of Complainant’s competitors. The Panel finds that such use disrupts Complainant’s business and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Respondent’s <ticketmasterexchange.com> domain
name is confusingly similar to Complainant’s TICKETMASTER mark. Internet users seeking Complainant’s genuine
website may easily find themselves instead redirected to Respondent’s website. The confusing similarity between the disputed
domain name and Complainant’s mark combined with the content of Respondent’s
website featuring links to third-party websites offering goods and services
similar to those offered by complainants, such as event tickets, may cause
Internet users to mistakenly believe that Respondent’s website is affiliated
with Complainant. Respondent is
presumably profiting from this confusion by collecting pay-per-click referral
fees from the links posted at its website.
The Panel finds that such use is evidence of bad faith registration and
use pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's
prior use of the <mailonsunday.com> domain name is evidence of bad faith
pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to
Complainant's competitors and Respondent presumably commercially benefited from
the misleading domain name by receiving ‘click-through-fees.’”); see also AltaVista Co. v. Krotov, D2000-1091
(WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the
respondent’s domain name resolved to a website that offered links to
third-party websites that offered services similar to the complainant’s
services and merely took advantage of Internet user mistakes).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ticketmasterexchange.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: October 3, 2006
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