Coachella Music Festival, LLC v. Omoss Interactive
Claim Number: FA1510001641258
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California. USA. Respondent is Omoss Interactive (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <freecoachellatickets.com>, registered with Tucows Domains Inc..
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 6, 2015; the Forum received payment on October 6, 2015.
On October 7, 2015, Tucows Domains Inc. confirmed by e-mail to the Forum that the <freecoachellatickets.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 9, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 29, 2015 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@freecoachellatickets.com. Also on October 9, 2015, 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 6, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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
Complainant has rights in the COACHELLA mark through several registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,196,119, registered January 9, 2007). Respondent’s <freecoachellatickets.com> domain name is confusingly similar to the COACHELLA mark because it merely adds the generic terms “free” and “tickets” to Complainant’s mark, as well as the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not licensed Respondent to use its COACHELLA mark, nor has Respondent been commonly known by the disputed domain name. Additionally, Respondent’s failure to resolve to an active website does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name.
Respondent has registered and is using the disputed domain name in bad faith. Respondent’s passive holding of a confusingly similar domain demonstrates bad faith. Finally, Respondent had actual knowledge of Complainant’s rights in the COACHELLA mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Coachella Music Festival, LLC, has rights in the COACHELLA mark through several registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,196,119, registered January 9, 2007). Respondent’s <freecoachellatickets.com> domain name is confusingly similar to the COACHELLA mark
Respondent, Omoss Interactive, registered the <freecoachellatickets.com> domain name on February 2, 2012. Respondent’s domain name does not resolve to an active website.
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(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.”).
Complainant has rights in the COACHELLA mark under Policy ¶ 4(a)(i) through several registrations of the mark with the USPTO. See Enter. Rent-A-Car Co. v. David Mizer Enters., Inc., FA 622122 (Nat. Arb. Forum Apr. 14, 2006) (finding that the complainant’s registration of the ENTERPRISE, ENTERPRISE RENT-A-CAR, and ENTERPRISE CAR SALES marks with the USPTO satisfied the requirement of demonstrating rights in the mark under consideration pursuant to Policy ¶ 4(a)(i)).
Respondent’s <freecoachellatickets.com> domain name is confusingly similar to the COACHELLA mark. The domain includes the whole COACHELLA mark and adds the generic terms “free” and “tickets,” as well as the gTLD “.com.” COACHELLA mark.
Respondent has not been commonly known by the <freecoachellatickets.com> domain name under Policy ¶ 4(c)(ii). Complainant has not authorized Respondent to use the COACHELLA mark. The WHOIS information identifies the registrant of the disputed domain name as “Omoss Interactive.” See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent’s failure to use the <freecoachellatickets.com> domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Respondent has registered and is using the <freecoachellatickets.com> domain name in bad faith. Respondent has failed to make active use of the domain name which shows bad faith registration and use. See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that [failure to make an active use] of a domain name permits an inference of registration and use in bad faith).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <freecoachellatickets.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 20, 2015
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