Coachella Music Festival, LLC v. Galina Malashkevich
Claim Number: FA1704001725853
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Galina Malashkevich (“Respondent”), Russian Federation.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tickets-coachella.com>, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 7, 2017; the Forum received payment on April 7, 2017.
On April 10, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <tickets-coachella.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 April 11, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 1, 2017 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@tickets-coachella.com. Also on April 11, 2017, 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 May 5, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <tickets-coachella.com> domain name is confusingly similar to Complainant’s COACHELLA mark.
2. Respondent does not have any rights or legitimate interests in the <tickets-coachella.com> domain name.
3. Respondent registered and uses the <tickets-coachella.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns and produces the Coachella Music Festival, providing festival-related goods and services. Complainant holds a registration for its COACHELLA mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,196,119, registered Jan. 9, 2007).
Respondent registered the <tickets-coachella.com> domain name on January 10, 2017, and it resolves to an inactive webpage.
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 (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.”).
The Panel finds that Complainant’s USPTO registration is sufficient to show rights in its COACHELLA mark for purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”).
Respondent’s <tickets-coachella.com> domain name incorporates Complainant’s COACHELLA mark and adds the generic term “tickets,” a hyphen, and the “.com” gTLD. The term “tickets” directly relates to Complainant’s business, and adds to the likelihood of confusion. See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Forum Mar. 5, 2001). The addition of a generic term and gTLD also does not distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016). Likewise, “the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark." Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000). Therefore, the Panel finds that Respondent’s <tickets-coachella.com> domain name is confusingly similar to Complainant’s COACHELLA mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (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 (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 argues that Respondent does not have rights or legitimate interests in <tickets-coachella.com> and is not commonly known by the disputed domain name. Complainant avers that it has not authorized Respondent to use the COACHELLA mark and that Respondent is not affiliated with Complainant. The WHOIS information for the disputed domain name identifies Respondent as “Galina Malashkevich.” The Panel finds no evidence that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Forum Aug. 3, 2006). “Given the WHOIS contact information for the disputed domain [name],” the Panel may “infer that Respondent . . . is not commonly known by the [disputed domain name] in any derivation.” Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Forum Nov. 17, 2003).
Complainant contends that Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Complainant demonstrates that Respondent’s <tickets-coachella.com> domain name resolves to an inactive webpage with the word “Hi” typed in the upper left corner of the page. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000). (“[Policy ¶] 4(c)(i) requires Respondent to show 1) ‘demonstrable’ evidence of such preparations to use the domain name, and 2) that such preparations were undertaken ‘before any notice to [Respondent] of the dispute.’”); see also Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) stating “a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).” Therefore, the Panel finds that Respondent’s failure to make an active use of the domain name 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 Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant maintains that Respondent registered and is using <tickets-coachella.com> in bad faith becasue the disputed domain name does not display a demonstrable intent to make active use of the website. “Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).” VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015). Moreover, any active use of the <tickets-coachella.com> domain could not conceivably serve a legitimate purpose. “[I]t makes no sense whatever to wait until [respondent] actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy.” Phat Fashions, LLC v. Kruger, FA 96193 (Forum Dec. 29, 2000). See also Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose). The Panel accordingly finds bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant contends that, due to the fame and notoriety of the COACHELLA mark, it is inconceivable that Respondent could have registered the disputed domain name without actual and/or constructive knowledge of Complainant's rights in the mark. The Panel agrees and finds bad faith Policy ¶ 4(a)(iii). See Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum March 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶ 4(a)(iii).”).
The Panel finds that Complainant has satisfied 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 <tickets-coachella.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 8, 2017
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