Coachella Music Festival, LLC v. Domain Administrator / China Capital Domain Fund Limited
Claim Number: FA1810001810966
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Domain Administrator / China Capital Domain Fund Limited (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <coachellawithyoutube.com> and <cochellawithyoutube.com>, registered with NameSilo, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 9, 2018; the Forum received payment on October 9, 2018.
On October 11, 2018, NameSilo, LLC confirmed by e-mail to the Forum that the <coachellawithyoutube.com> and <cochellawithyoutube.com> domain names are registered with NameSilo, LLC and that Respondent is the current registrant of the names. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 11, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 31, 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@coachellawithyoutube.com, and postmaster@cochellawithyoutube.com. Also on October 11, 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 November 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant owns and produces the famous Coachella Valley Music and Arts Festival, the country’s premier music and arts festival held annually in Southern California. Complainant has rights in the COACHELLA mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,196,119, registered Jan. 9, 2007). See Compl. Ex. H. Respondent’s <coachellawithyoutube.com> and <cochellawithyoutube.com> domain names are confusingly similar to Complainant’s mark as they each add the descriptive terms “with youtube” and the “.com” generic top-level domain (“gTLD”). One of the domain names also removes the first letter “a” from Complainant’s COACHELLA mark.
Respondent has no rights or legitimate interests in the infringing domain names. Respondent is not commonly known by the domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the COACHELLA mark. Respondent also does not use the <coachellawithyoutube.com> and <cochellawithyoutube.com> domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain names to host commercial parking pages populated by competing pay-per-click advertisements.
Respondent registered and uses the <coachellawithyoutube.com> and <cochellawithyoutube.com> domain names in bad faith. Respondent intentionally attempts to attract Internet users to its website by creating a likelihood of confusion with the complainant’s mark to profit from competing pay-per-click advertisements.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns and produces the famous Coachella Valley Music and Arts Festival, held annually in Southern California. Complainant has rights in the COACHELLA mark through its registration of the mark with the USPTO (e.g. Reg. No. 3,196,119, registered Jan. 9, 2007). Respondent’s <coachellawithyoutube.com> and <cochellawithyoutube.com> domain names are confusingly similar to Complainant’s mark.
Respondent registered the <coachellawithyoutube.com> and <cochellawithyoutube.com> domain names on April 16, 2018 and April 17, 2018, respectively.
Respondent has no rights or legitimate interests in the disputed domain names. Respondent uses the domain names to host commercial parking pages populated by competing pay-per-click advertisements.
Respondent registered and uses the <coachellawithyoutube.com> and <cochellawithyoutube.com> domain names in bad faith.
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.”).
Complainant has rights in the COACHELLA mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i)).
Respondent’s <coachellawithyoutube.com> and <cochellawithyoutube.com> domain names are confusingly similar to Complainant’s mark as they each add the descriptive terms “with youtube” and the “.com” gTLD, while one of the domain names removes the first letter “a” from Complainant’s mark.
Respondent has no rights or legitimate interests in the <coachellawithyoutube.com> and <cochellawithyoutube.com> domain names. Complainant has not authorized Respondent to use its COACHELLA mark. The WHOIS identifies “Domain Administrator / China Capital Domain Fund limited” as the registrant of both domain names. Respondent is not commonly known by the domain names under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent uses the <coachellawithyoutube.com> and <cochellawithyoutube.com> domain names to host commercial parking pages populated by competing pay-per-click advertisements. Using a domain name to offer links to services in direct competition with a complainant does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Respondent’s resolving web pages associated with the domain names contain links such as “Live Streaming Video” and “Event Tickets.” Therefore, Respondent’s use of the domain names to offer competing hyperlinks fails to confer rights and legitimate interests for the purposes of Policy ¶¶ 4(c)(i) or (iii).
Respondent intentionally attempts to attract Internet users to its resolving websites by creating a likelihood of confusion with Complainant’s mark to profit from competing pay-per-click advertisements. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain shows bad faith under Policy ¶ 4(b)(iv). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”).
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 <coachellawithyoutube.com> and <cochellawithyoutube.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 19, 2018
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