DECISION

 

Coachella Music Festival, LLC v. victor Rincon

Claim Number: FA1809001806946

PARTIES

Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA.  Respondent is victor Rincon (“Respondent”), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <coachellaartists.com>, registered with eNom, LLC.

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on September 19, 2018; the Forum received payment on September 19, 2018.

 

On September 20, 2018, eNom, LLC confirmed by e-mail to the Forum that the <coachellaartists.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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 September 21, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 11, 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@coachellaartists.com.  Also on September 21, 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 October 18, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant:

1.    Complainant, Coachella Music Festival, LLC., owns and produces the famous Coachella Valley Music and Arts Festival, the United States’ premier music and arts festival. Complainant uses the COACHELLA mark to advertise the festival, and claims rights in the mark based upon registration with the United States Patent and Trademark Office

(“USPTO”) (e.g., Reg. No. 3,196,129 registered Jan. 9, 2007). See Compl. Ex. G. Respondent’s <coachellaartists.com> domain name is confusingly similar to the COACHELLA mark, as it contains the mark in its entirety, merely adding the descriptive term “artists” and the generic top-level domain (“gTLD”) “.com.”

 

2.    Respondent does not have rights or legitimate interests in the <coachellaartists.com> domain name. Respondent is not commonly known by the disputed domain name, as the WHOIS information lists Respondent as “victor Rincon.” Complainant also has not granted Respondent permission or a license to use the COACHELLA mark for any purpose. Further, Respondent does not use the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Rather, Respondent is passively holding the <coachellaartists.com> domain name. See Compl. Ex. H.

 

3.    Respondent has registered and uses the <coachellaartists.com> domain name in bad faith. Respondent fails to make an active use of the disputed domain name’s resolving webpage. See Compl. Ex. H. Finally, Respondent registered the disputed domain name with knowledge of Complainant’s rights in the COACHELLA mark.

 

B.   Respondent:

1.    The Respondent filed no Response.

 

2.    The Panel notes that the disputed domain name was created on April 19, 2018.

 

FINDINGS

1.    Respondent’s <coachellaartists.com> domain name is confusingly similar to Complainant’s COACHELLA mark.

 

2.    Respondent does not have any rights or legitimate interests in the

<coachellaartists.com> domain name.

 

3.    Respondent registered or used the <coachellaartists.com> domain name in bad faith.

 

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

Complainant claims rights in the COACHELLA mark based upon its registration with the USPTO (e.g. Reg. No. 3,196,129 registered Jan. 9, 2007). See Compl. Ex. G.  Registration with the USPTO is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Therefore, the Panel finds that Complainant has rights in the COACHELLA mark per Policy ¶ 4(a)(i).

 

Complainant asserts that the <coachellaartists.com> domain name is confusingly similar to the COACHELLA mark as each contains the mark in its entirety and adds the descriptive term “artists” and the gTLD “.com.” Slight differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark, do not distinguish the domain name from the mark incorporated therein. See Traditional Medicinals, Inc. v. Flippa Chick, FA 1328702 (Forum July 15, 2010) (“Respondent’s disputed domain name contains Complainant’s SMOOTH MOVE mark in its entirety after removing the space separating the terms of the mark, adds the descriptive terms “herbal tea” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of descriptive terms creates a confusing similarity between the disputed domain name and Complainant’s mark.”). Similarly, the addition of gTLDs are irrelevant in determining whether a disputed domain name is confusingly similar. See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel agrees with Complainant and finds that  the <coachellaartists.com> domain name does not contain changes that would sufficiently distinguish it from the COACHELLA mark.

 

Rights or Legitimate Interests

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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant argues that Respondent has no rights or legitimate interests in the <coachellaartists.com> domain name. Specifically, Complainant contends Respondent is not licensed or permitted to use Complainant’s COACHELLA mark and is not commonly known by the disputed domain name. Where a response is lacking, relevant WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Additionally, lack of evidence in the record to indicate that the respondent has been authorized to register a domain name using a complainant’s mark supports a finding that a respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 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 notes that the WHOIS information of record identifies the registrant as “victor Rincon.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.

 

Next, Complainant contends that the Respondent fails to use the <coachellaartists.com> domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Specifically, Complainant avers that Respondent inactively holds the disputed domain name. A respondent’s failure to make active use of a disputed domain name can provide evidence that the respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) or (iii). See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of 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).”). Complainant provides a screenshot of the disputed domain name’s resolving webpage, which displays the error message “404. That’s an error.” See Compl. Ex. H. Accordingly, the Panel determines Respondent’s failure to use the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).

 

Registration and Use in Bad Faith

The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which bad faith may be found.  See, e.g., Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).  The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of another.  See, e.g., Match.com, LP v. BillZag and NWLAWS.ORG, D2004-0230 (WIPO June 2, 2004).  While Complainant has not made any arguments that would fit within the bounds of Policy ¶ 4(b) elements, the Panel therefore considers Respondent’s actions under a nonexclusive inquiry of Policy ¶ 4(a)(iii).

 

Complainant claims that Respondent fails to make any legitimate use of the disputed domain name. Passive holding of a confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). As noted above, Complainant provides a screenshot of the disputed domain name’s resolving webpage, which displays the error message “404. That’s an error.” See Compl. Ex. H. Accordingly, the Panel agrees that Respondent’s failure to use the domain name for any substantive purpose evinces Respondent’s bad faith under the Policy.

 

Additionally, Complainant argues that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark and rights therein. Actual knowledge may be proven through a totality of circumstances surrounding the registration of the disputed domain name. See Google Inc. v. Ahmed Humood, FA 1591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.”). Complainant asserts that, given Respondent’s explicit use of the COACHELLA mark in the subject domain name, Respondent registered the well-known business name with hopes of attracting the Complainant’s customers, demonstrating Respondent’s bad faith. Therefore, the Panel agrees that Respondent had actual knowledge of Complainant’s rights in the COACHELLA mark when it registered the <coachellaartists.com> domain name, thereby supporting a finding of bad faith under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <coachellaartists.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

Dated:  November 1, 2018