Coachella Music Festival, LLC v. Domain Administrator and CHINA CAPITAL INVESTMENT LIMITED
Claim Number: FA1710001756067
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Domain Administrator and CHINA CAPITAL INVESTMENT LIMITED (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coachellatcc.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 IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 28, 2017; the Forum received payment on October 28, 2017.
On October 30, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <coachellatcc.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 October 30, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 20, 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@coachellatcc.com. Also on October 30, 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 November 21, 2017 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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’ contentions can be summarised as follows:
Complainant owns and produces the famous Coachella Valley Music and Arts Festival It owns, inter alia the registered trade mark COACHELLA in the USA for organising and producing musical events and the associated common law rights and uses that mark in connection with its festival, first use in commerce recorded as 1999. It has a web site at www.coachella.com.
The Domain Name is confusingly similar to Complainant’s COACHELLA trade mark featuring it in its entirety and merely adding the extra letters “tcc’ which does nothing to distinguish the Domain Name from Complainant’s famous COACHELLA mark.
Respondent, who is in no way affiliated with Complainant has used the Domain Name to misdirect consumers looking for Complainant and its festival to a commercial parking web site which hosts pay per click advertisements for Complainant’s services and also competing services. This cannot be a bona fide offering of goods and services. Since it is commercial use it cannot be legitimate non commercial or fair use. Respondent is not commonly known by the Domain Name. Complainant has not licensed Respondent to use the Domain Name. Respondent has no rights or legitimate interests in the Domain Name.
It is well settled that use of a domain name that is identical or confusingly similar to a complainant’s mark to host a parking page is evidence of bad faith. Registering such a domain name referencing Complainant and having no interest in the Domain Name is also bad faith.
Respondent has intentionally attempted to attract for commercial gain Internet users to its web site by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its web site or products or services on it.
Respondent is a notorious cyber squatter having been ordered to transfer domain names previously to Complainant that contained its COACHELLA mark and been involved in other UDRP decision involving Jaguar, Morgan Stanley and the rights of other trade mark holders and ordered to transfer the domain names in question back to the relevant rights owners.
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 registered trade mark COACHELLA in the USA for organising and producing musical events and the associated common law rights and uses that mark in connection with its festival, first use in commerce recorded as 1999. It has a web site at www.coachella.com.
The Domain Name has been used to point to pay per click links including those of Complainant’s competitors.
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 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 Complainant’s registered COACHELLA mark. the additional letters ‘tcc’ and the gTLD .com. The Panel agrees that the addition of the letters ‘tcc’ to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy as Complainant’s mark is still clearly identifiable in the Domain Name.
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 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to 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 Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
It is clear from the evidence that Respondent has used the page attached to the Domain Name to promote services which are not connected with Complainant through pay per link links. It is clear from the use of links to Complainant’s actual services in the links posted at the page connected to the Domain Name that Respondent is aware of the significance of the COACHELLA and name and Complainant’s rights and was more likely than not to have been so aware at the time of registration. The usage of Complainant’s mark which has a significant reputation in relation to its services in relation to similar services not connected with Complainants is not fair as the page attached to the Domain Name does not make it clear that there is no commercial connection with Complainant. As such, these activities cannot amount to the bona fide offering of goods and services. Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use Complainant’s trade marks in this way. As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
As determined above, Respondent's use of the site is commercial and it is using it to make a profit from promoting services not associated with Complainant in a confusing manner while being aware of Complainant and its rights.
It seems clear that the use of Complainant’s mark in the Domain Name and the link to the actual Complainant’s services would cause people to associate the page attached to the Domain Name with Complainant and its business and services. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of the web site attached to the Domain Name.
As such, the Panel believes that 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.
The Panel notes that Respondent also been involved in several other UDRP cases where it was required to transfer domain names to Complainant and/or other trade mark owners, but in view of the findings above there is no need to consider further possible grounds demonstrating Respondent’s bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coachellatcc.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 4, 2017
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