Coachella Music Festival, LLC v. Anita Nourbakhsh
Claim Number: FA1801001769184
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Anita Nourbakhsh (“Respondent”), Alberta, Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coachellatrend.com>, registered with Network Solutions, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 27, 2018; the Forum received payment on January 27, 2018.
On January 30, 2018, Network Solutions, LLC confirmed by e-mail to the Forum that the <coachellatrend.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 January 30, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 20, 2018 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@coachellatrend.com. Also on January 30, 2018, 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 February 23, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it owns and produces the famous Coachella Valley Music and Arts Festival (“Coachella”), the USA’s premier music and arts festival. Held annually at the 78-acre Empire Polo Club in the beautiful Southern California desert, Coachella is one of the most critically acclaimed music festivals in the world. Attendance to the sold-out event aggregated over the multi-day festival is estimated at nearly 600,000 attendees. For the past several years, tickets to Coachella have typically sold out in about an hour. Coachella mixes some of the most groundbreaking artists from all genres of music along with a substantial selection of art installations from all over the world. The Festival attracts some of the world’s biggest mega-stars to perform. Complainant extensively promotes Coachella through a variety of media, including via the Internet, including and on numerous social media sites. Complainant has exclusive rights in the COACHELLA mark due to its trademark registrations in the United States in 2007.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s COACHELLA mark because Respondent adds the descriptive term “trend” and a “.com” generic top level domain (“gTLD”) to Complainant’s mark. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s COACHELLA mark and Respondent is not commonly known by the disputed domain name. Additionally, Respondent’s use of Complainant’s mark and photographs of Complainant’s festival to sell unrelated goods and services does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent’s diversion of users to the disputed domain name indicates bad faith registration and use. Furthermore, Respondent’s use of the disputed domain name to feature photographs associated with Complainant to sell unrelated goods and services indicates bad faith registration and use. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for the name COACHELLA dating back to 2007.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2018.
Respondent is using the disputed domain name to resolve to a web site that displays Complainant’s trademark and photographs and that offers for sale products not related to Complainant.
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 disputed domain name is confusingly similar to Complainant’s COACHELLA mark because Respondent merely adds the descriptive term “trend” and a gTLD to Complainant’s mark. Adding a descriptive term and/or a gTLD to a mark does not negate any confusing similarity between the disputed domain name from the mark per Policy ¶ 4(a)(i). See Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s COACHELLA mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the COACHELLA mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here the Panel notes that the WHOIS information of record identifies Respondent as “Anita Nourbashsh.” Additionally, lack of evidence in the record to indicate that a complainant authorized respondent to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum Jun. 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent has not made a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Instead, Respondent prominently displays Complainant’s mark and photographs in connection with the sale of jewelry, watches, and other unrelated products at the disputed domain name. Attempts to pass off as a complainant in order to sell unrelated goods or services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum Jul. 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”); see also Mortgage Research Center LLC v. Miranda, FA 993017 (Forum Jul. 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”). Thus, the Panel finds Respondent’s attempts to pass off as Complainant in order to sell unrelated goods is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). Further, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent displays Complainant’s COACHELLA mark and Complainant’s pictures at the resolving web site in order to sell unrelated goods. This demonstrates bad faith registration and use per Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”); see also Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites). Thus, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coachellatrend.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 23, 2018
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