Coachella Music Festival, LLC v. Collin Meissner / NA
Claim Number: FA1510001641829
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Collin Meissner / NA (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sellyourcoachellatickets.com>, registered with Launchpad.com 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.
Flip Jan Claude Petillion as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 9, 2015; the Forum received payment on October 9, 2015.
On October 13, 2015, Launchpad.com Inc. confirmed by e-mail to the Forum that the <sellyourcoachellatickets.com> domain name is registered with Launchpad.com Inc. and that Respondent is the current registrant of the name. Launchpad.com Inc. has verified that Respondent is bound by the Launchpad.com 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 14, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 9, 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@sellyourcoachellatickets.com. Also on October 14, 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.
A timely Response was received and determined to be complete on November 9, 2015.
On November 16, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Flip Jan Claude Petillion 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant claims it has rights in the COACHELLA mark through multiple registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,196,119, registered January 9, 2007). See Compl., at Attached Ex. D. In Complainant’s view, Respondent’s <sellyourcoachellatickets.com> domain name is confusingly similar to Complainant’s COACHELLA mark because the domain only adds the generic terms “sell,” “your,” and “tickets,” to Complainant’s mark, as well as the generic top-level domain (“gTLD”) “.com.”
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Complainant states it has not licensed Respondent to use its COACHELLA mark, nor has Respondent been commonly known by the disputed domain name. Additionally, Complainant considers that 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.
In Complainant’s view, Respondent has registered and is using the disputed domain name in bad faith. Complainant considers that Respondent’s passive holding of a confusingly similar domain demonstrates bad faith, and that there is no conceivable use of the subject domain name by Respondent that would be legitimate. Finally, according to Complainant, Respondent had actual knowledge of Complainant’s rights in the COACHELLA mark at the time of registration.
B. Respondent
Respondent states he intends to establish a business not associated with Complainant’s music festival using the disputed domain name. Respondent emphasizes the fact that he has not used any artwork or trademarks owned by Complainant. Finally, according to Respondent, as Coachella is a city in California Complainant cannot possibly have exclusive use of the word “Coachella.”
Complainant owns several trademarks including the word mark COACHELLA, registered with the USPTO on January 9, 2007 under the No. 3,196,119. The mark has been registered for entertainment services, namely organizing and producing musical events.
The Panel notes that the disputed domain was registered on April 7, 2014. The disputed domain name is not actively used by Respondent.
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.
Complainant asserts its rights in the COACHELLA mark based on several registrations of the mark with the USPTO (e.g., Reg. No. 3,196,119, registered January 9, 2007). See Compl., at Attached Ex. D. Prior panels have consistently found, and this Panel concludes accordingly, that registration with the USPTO is sufficient to demonstrate a Respondent’s rights in a mark pursuant to Policy ¶ 4(a)(i). 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)).
Complainant contends that Respondent’s <sellyourcoachellatickets.com> domain name is confusingly similar to the COACHELLA mark in which Complainant claims to have demonstrated its rights. Respondent’s domain appears to differ from the COACHELLA mark through the addition of the generic terms “sell,” “your,” and “tickets,” along with the gTLD “.com.” According to the Panel, adding these generic terms does little to distinguish the disputed domain name from the COACHELLA mark. See Disney Enter. v. Kudrna, FA 686103 (Nat. Arb. Forum June 2, 2006) (finding that the alterations to the complainant’s DISNEY mark in the respondent’s <finestdisneyhomes.com> domain name are insufficient to differentiate the domain name from the mark pursuant to Policy ¶ 4(a)(i)). In view of the fact that Complainant owns and produces a music festival including its COACHELLA mark, the Panel considers that the addition of the word “tickets” or the expression “sell your (…) tickets” increases the confusing similarity with the COACHELLA mark, as Internet users could easily link the domain name to the ticket sale of Complainant’s festival.
Further, the Panel finds the presence of the gTLD “.com” irrelevant to an analysis of confusing similarity. See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Nat. Arb. Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant).
Therefore, the Panel holds that the disputed <sellyourcoachellatickets.com> domain name is confusingly similar to Complainant’s COACHELLA mark.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) in order to shift the burden of proof to Respondent. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims that Respondent has not been commonly known by the disputed domain name or licensed to use the COACHELLA mark in any manner. The Panel notes that WHOIS information associated with the disputed domain name identifies Respondent as “Colin Meissner”, which does not appear to resemble the disputed domain name. See Compl., at Attached Ex. A. Previous panels have held that a respondent is not commonly known by a disputed domain name based on WHOIS information and a lack of authorization or licensing arrangement from a complainant. 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). For these reasons, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant contends that Respondent’s non-active use of the disputed domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s domain appears to resolve to a generic landing page set up by the host of the domain name. See Compl., at Attached Ex. E. Panels have found that failing to make active use of a disputed domain name does not fall under Policy ¶ 4(c)(i) or ¶ 4(c)(iii). See Hewlett-Packard Co. v. Shemesh, FA 434145 (Nat. Arb. Forum Apr. 20, 2005) (finding that a respondent’s non-use of a domain name that is identical to a complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). The Panel finds that Respondent’s nonuse of the disputed domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent states he intends to establish a business not associated with Complainant’s music festival using the disputed domain name. However, Respondent fails to provide any evidence supporting his statement. Therefore, the Panel finds that Respondent does not show any right or legitimate interests in the disputed domain name.
The Panel notes that while Complainant has not made arguments under Policy ¶ 4(b), such arguments are not mandatory under the Policy—so long as Complainant shows bad faith use and registration in some manner. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
The Panel finds that Complainant provided sufficient evidence of the reputation of its COACHELLA mark in relation to the music festival it produces. Therefore, the Panel considers it is virtually inconceivable that Respondent could have registered the <sellyourcoachellatickets.com> domain name without actual knowledge of Complainant's rights in the mark. In the Panel’s view, this is adequate evidence of bad faith registration under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration”).
Respondent claims that Complainant does not have a right to exclusively use the term COACHELLA because it is a geographic term for the Coachella Valley of California. However, according to the Panel, the combination of the expression “sell your (…) tickets” and the term “Coachella” at least suggests a link with Complainant’s music festival. In view of the reputation of Complainant’s trademark, the Panel considers that there is no conceivable use of the <sellyourcoachellatickets.com> domain name by Respondent that would be legitimate.
Moreover, Complainant claims that Respondent’s inactive holding of the domain name demonstrates bad faith. Indeed, Respondent’s disputed domain appears to resolve to a generic landing page. See Compl., at Attached Ex. E. The Panel finds that in this case, Respondent’s inactive holding of the disputed domain name for more than a year is a further indication of bad faith. 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); see also Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Nat. Arb. Forum Apr. 12, 2007) (holding that non-use of a confusingly similar domain name for over seven months constitutes bad faith registration and use).
In view of the above, the Panel finds that Respondent registered and used, by passively holding, the disputed domain name in bad faith. Complainant thus satisfied the elements of ICANN 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 <sellyourcoachellatickets.com> domain name be TRANSFERRED from Respondent to Complainant.
Flip Jan Claude Petillion, Panelist
Dated: November 30, 2015
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page