Coachella Music Festival, LLC v. coachella live
Claim Number: FA1603001666896
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is coachella live (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coachellalivestream2016.com> ('the Domain Name'), registered with GoDaddy.com, LLC.
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.
<<Dawn Osborne of Palmer Biggs Legal>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 22, 2016; the Forum received payment on March 22, 2016.
On March 23, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <coachellalivestream2016.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 March 23, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 12, 2016 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@coachellalivestream2016.com. Also on March 23, 2016, 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 April 15, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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's contentions can be summarised as follows:
Complainant owns and produces the famous Coachella Valley Music and Arts Festival. It owns, inter alia the trade mark COACHELLA in the USA for organising and producing musical events and uses that mark in connection with its festival, first use in commerce recorded as 1999. Complainant exclusively live streams the first weekend of its festival via youtube.com and live streams the second weekend via its axs.com. It has a web site at www.coachella.com.
The Domain Name includes the Complainant's COACHELLA mark as the dominant part of the Domain Name and merely appends ‘livestream' and '2016' to it for the Domain Name. The addition of terms which are related to the Complainant or its services supports a finding of confusing similarity. The addition of a gTLD to the Domain Name is irrelevant to the confusing similarity analysis. The Domain Name is confusingly similar to the Complainant’s COACHELLA mark.
Respondent has no rights or legitimate interest in the Domain Name. Complainant has not licensed Respondent to use its COACHELLA mark. Respondent is not commonly known by the Domain Name.
Respondent is not making a bona fide offering of goods or services at the Domain Name. Respondent, who is in no way affiliated with Complainant or its festival, is using the Domain Name to misdirect consumers looking for the Complainant and its live stream to Respondent’s own commercial website (which purports to unlawfully stream Complainant’s festival). Unlawful use cannot be bona fide use.
Respondent has registered and is using the Domain Name in bad faith. 4(b) (iv) of the Policy provides that use of a domain name confusingly similar to the Complainant’s mark to create a likelihood of confusion for commercial gain supports a finding of bad faith. The use of the COACHELLA mark in the Domain Name and on the web site and the use of the Complainant's logo (also a US registered trade mark) on the Respondent's web site shows actual knowledge of the Complainant and its rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns and produces the famous Coachella Valley Music and Arts Festival. It owns, inter alia the trade mark COACHELLA in the USA for organising and producing musical events and uses that mark in connection with its festival, first use in commerce recorded as 1999. Complainant exclusively live streams the first weekend of its festival via youtube.com and live streams the second weekend via its axs.com. It has a web site at www.coachella.com.
Respondent registered the Domain Name in 2016 and is using it to point to a web site using the Complainant's COACHELLA name and logo which offers to stream a feed of the Complainant's festival).
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(f), 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.”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's COACHELLA mark (which is registered in USA for entertainment services, namely musical events and has been used since 1999), the additional generic terms 'livestream' and '2016' and the gTLD .com.
Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not, by adding common descriptive or generic terms, create new or different marks nor does it alter the underlying mark held by the complainant). The Panel agrees that the addition of the generic terms 'livestream' and ‘2016’ to the Complainant's mark does not distinguish the Domain Name from the Complainant's COACHELLA trade mark pursuant to the Policy.
The gTLD .com does not serve to distinguish the Domain Name from the COACHELLA mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v Haecke FA 726010 (Nat Arb Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Complainant maintains that the Respondent is not using the Domain Name to offer bona fide goods and services and that the Complainant has not authorised the use of its mark. The Complainant contends that the site is set up for commercial benefit to compete with the Complainant using the latter's intellectual property rights.
The web site attached to the Domain Name uses the Complainant's word and logo trade mark COACHELLA. The Respondent has used the site to promote services in competition with those of the Complainant. It does not make it clear that there is no commercial connection with the Complainant., The Panel finds this use is confusing. As such, it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc. v Benjamin FA 944242 (Nat. Arb. Forum May 11, 2007)( finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)
As such the Panelist find that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Complainant also alleges that the Respondent’s use of the site is commercial and he is using it to make profit by competing with the Complainant in a confusing manner.
In the opinion of the panellist the use made of the Domain Name in relation to the site is confusing in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it appears to offer the same services as the Complainant under a confusingly similar name after the Complainant had established rights in its name.
The use of the Complainant's COACHELLA word and logo marks on the Respondent's web site shows that the Respondent is aware of the Complainant.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site. (See Asbury Auto Group Inc. v Tex. Int'l Prop Assocs FA 958542 (Nat. Arb Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv). As such it is not necessary to consider further grounds of bad faith alleged by the 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 <coachellalivestream2016.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 20 2016
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