Coachella Music Festival, LLC v. Domain Admin
Claim Number: FA1810001811658
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Domain Admin (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coachellavipexperiences.com>, registered with NameCheap, Inc.
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.
David L. Kreider, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 14, 2018; the Forum received payment on October 14, 2018.
On October 15, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <coachellavipexperiences.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 22, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 13, 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@coachellavipexperiences.com. Also on October 22, 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.
A timely Response was received and determined to be complete on November 9, 2018.
On November 11, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David L. Kreider, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant Coachella Music Festival, LLC (“Complainant”) owns and produces the famous Coachella Valley Music and Arts Festival (“Coachella”), America’s premier music and arts festival. Complainant owns the exclusive rights to Coachella, including the COACHELLA, COACHELLA (stylized), COACHELLA MUSIC FESTIVAL, COACHELLA VALLEY MUSIC AND ARTS FESTIVAL, and CHELLA trademarks and service marks (collectively, “the Coachella Marks”), which Complainant uses in connection with its famous Coachella festival.
Respondent, who is in no way affiliated with Complainant, has registered the domain name coachellavipexperiences.com, which Respondent is passively holding. Respondent is engaged in cybersquatting in violation of the Policy, and Complainant requests the subject domain name be transferred.
a. About Complainant’s Coachella Music Festival
Held annually at the 78-acre Empire Polo Club in the Southern California desert, Coachella is one of the most critically acclaimed music festivals in the world. The first Coachella festival, held in October 1999, drew some 25,000 attendees into the California desert a few hours’ drive from Los Angeles, in Indio, California. Over the years, both the festival’s attendance and its prominence within the music industry have grown.
The Festival attracts some of the world’s biggest mega-stars to perform. The list of artists who have performed include: Beastie Boys, Beyoncé, Bjork, Coldplay, Daft Punk, Depeche Mode, Drake, Jane’s Addiction, Jay-Z, Kanye West, Madonna, Nine Inch Nails, Oasis, Paul McCartney, Prince, Radiohead, Rage Against the Machine, Red Hot Chili Peppers, Roger Waters, The Cure, The Pixies, and Tool, among others.
Connecting the Festival’s community together is the website available at coachella.com. This website has received over 24 million page views in the past year and has hosted nearly 8 million users in over 11 million sessions. Complainant extensively promotes Coachella through a variety of media, including via the Internet, including and on numerous social media sites including Facebook, Twitter, and Instagram, to list a few. The Coachella’s Facebook page has over 2 million likes; its Twitter account is being followed by over eight hundred thousand Twitter users; and its Instagram account is being followed by over 1 million Instagram users.
Complainant invested over $1,025,000 dollars in 2018 in media and related content to promote Coachella. An Internet search using the Google search engine for the term “Coachella music festival” provided over 1 million hits; a cursory review of the results shows nearly every hit was related to Coachella; and the first search result was to www.coachella.com website. Tracked online media impressions (advertisements) for Coachella from March 1, 2018 through May 1, 2018 exceeded 70 million impressions.
b. Complainant’s Rights In Its Coachella Marks
Complainant owns multiple registrations, covering a wide variety of goods and services, for its Coachella Marks. Specifically, Plaintiffs own: United States Service Mark Registration No. 3,196,119 for COACHELLA (this Registration is incontestable under 15 U.S.C. § 1065); United States Trademark Registration No. 4,270,482 for COACHELLA (this Registration is incontestable under 15 U.S.C. § 1065); United States Service Mark Registration No. 5,235,905 for COACHELLA; United States Trademark Registration No. 5,557,242 for COACHELLA; United States Service Mark Registration No. 3,196,129 for COACHELLA (stylized) (this Registration is incontestable under 15 U.S.C. § 1065); United States Trademark Registration No. 4,266,400 for COACHELLA (stylized) (this Registration is incontestable under 15 U.S.C. § 1065); United States Service Mark Registration No. 5,235,903 for COACHELLA (stylized); United States Service Mark Registration No. 3,196,128 for COACHELLA VALLEY MUSIC AND ARTS FESTIVAL (this Registration is incontestable under 15 U.S.C. § 1065); United States Trademark Registration No. 3,965,563 for COACHELLA VALLEY MUSIC AND ARTS FESTIVAL (this Registration is incontestable under 15 U.S.C. § 1065); United States Trademark Registration No. 4,008,651 for COACHELLA VALLEY MUSIC AND ARTS FESTIVAL (this Registration is incontestable under 15 U.S.C. § 1065); United States Trademark Registration Nos. 5,075,233 for CHELLA; and United States Service Mark Registration No. 5,520,063 for CHELLA.
In addition to these federal registrations, which carry the presumption of validity, Complainant owns common law trademark rights in its Coachella Marks from nearly two decades of extensive use in commerce. Complainant, through its predecessor-in-interest, began using the Coachella Marks in connection with its Festival in October, 1999.
Complainant diligently protects its trademark and service mark rights in its Coachella Marks. Complainant diligently contacts individuals and businesses using the Coachella Marks in an unauthorized manner. See Coachella Music Festival, LLC v. Mark Williams, FA 547864 (Forum Apr. 18, 2014) (transferring coachella-weekend1.com which was used in connection with unlawful ticket sales to Complainant’s festival and online fraud); Coachella Music Festival, LLC v. Mark Jardino, FA 626326 (Forum Aug. 7, 2015) (Panel Decision to transfer ticketscoachella.com to Complainant); Coachella Music Festival, LLC v. josh greenly, FA 629217 (Forum Aug. 10, 2015) (Panel Decision to transfer coachellaticketsonline.com to Complainant); Coachella Music Festival, LLC v. Michael Liechty, FA 633389, (Forum Aug. 26, 2015) (Panel Decision to transfer coachella2016tickets.com to Complainant); see also Coachella Music Festival, LLC v. Vertical Axis Inc., FA 429552 (Forum; Dismissed Apr. 16, 2012) (case dismissed to permit transfer of the domain name coachellamusicfestival.com to Complainant).
c. The Subject Domain Name Is Confusingly Similar To Complainant’s Trademarks
The subject domain names are confusingly similar to Complainant’s trademarks. To support a finding that a subject domain name is identical or confusingly similar to a complainant’s mark all that is required is:
that the domain name misappropriate sufficient textual components from the mark such that an ordinary Internet user who is familiar with the goods or services distributed under the mark would upon seeing the domain name likely think that owing to the visual and/or phonetic similarity between the mark and the domain name that an affiliation exists between the site identified by that domain name and the owner or licensed user of the mark.
Awesome Kids LLC v. Selavy Comm., D2001-0210 (WIPO Apr. 16, 2001); see also Jews for Jesus v. Brodsky, 993 F.Supp. 282, 296 (D.N.J.), aff’d, 159 F.3d 1351 (3d Cir. 1998) (holding JEWS FOR JESUS and jewsforjesus.org confusingly similar).
In the present case, the subject domain name, coachellavipexperiences.com, merely combines the Coachella Marks with the descriptive phrase, “VIP experiences.” The addition of a term which is related to the complainant or its services supports a finding of confusing similarity. See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sep. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a term that has an obvious relationship to the complainant’s business); Bridgestone Corporation v. Vahid Chitsaz, FA 15367 (Forum Aug. 1, 2007) (holding that the addition of the related terms “tire” and “sale” to complainant’s BRIDGESTONE mark “do not negate any confusing similarity between the disputed domain name and the mark”); Parfums Christian Dior v. 1 Netpower, Inc., D2000-0022 (WIPO Mar. 3, 2000) (finding that a domain name that added the descriptive words “fashion” or “cosmetics” after the trademark were confusingly similar to the trademark).
Here, the phrase “VIP experiences” is very closely associated with Complainant’s services. Complainant offers VIP passes as one of its attendance tiers, which allows purchasers to experience exclusive VIP services and access to select VIP areas at the festival. Just as in Space Imaging, Bridgestone Corporation and Christian Dior, the subject domain name misappropriates sufficient textual components from the famous Coachella Marks that an ordinary Internet user familiar with Complainant’s festival would, upon seeing the domain name, likely think that, owing to the visual and/or phonetic similarity between the Coachella Marks and the domain name, an affiliation exists between the site identified by the domain name and Complainant or its festival. Awesome Kids LLC.
Lastly, the addition of a generic top-level domain name (e.g., .com, .net, or .rocks, etc.) to the subject domain name is irrelevant to the confusingly similar analysis. See Dermalogica, Inc. and The International Dermal Institute, Inc. v. Andrew Porter and Zen Day Spa, FA 1155710 (Forum Apr. 14, 2008). Thus, the addition of the generic top-level domain name is insufficient to avoid a finding of confusing similarity between the subject domain name and Complainant’s Coachella Marks. Accordingly, both applicable case law and prior administrative proceedings support a finding that the subject domain name is confusingly similar to Complainant’s marks.
d. Respondent Has No Rights Or Legitimate Interest In The Subject Domain Name
Respondent has no rights or legitimate interest in the subject domain name. Under the Policy, once the Complainant asserts a prima facie case against the respondent, the respondent bears the burden of proving that it has rights or legitimate interests in the subject domain name pursuant to ¶ 4(a)(ii) of the Policy. AOL LLC v. Gerberg, FA 780200 (Forum Sep. 25, 2006). A complainant establishes a prima facie case by a showing that (1) a respondent is not known by a complainant’s marks or (2) authorized to use the marks. G.D. Searle & Co. v. Martin Mktg., FA 118277 (Forum Oct. 1, 2002); Dunkin’ Brands Group, Inc. et al. v. Giovanni Laporta, FA 568547 (Forum Aug. 25, 2014).
Here, Respondent is not known by the subject domain name. Complainant has not licensed Respondent to use the Coachella Marks nor does Respondent have any legal relationship with Complainant that would entitle Respondent to use Complainant’s famous Coachella Marks. Respondent has no legitimate reason for using Complainant’s Coachella Marks as the dominant part of the subject domain name.
i) Respondent Is Not Making A Bona Fide Offering Of Goods Or Services At The Subject Domain Name
The Policy details several circumstances which, if proven, could support a finding that Respondent has a legitimate interest in the subject domain name. For instance, Respondent could have rights under ¶ 4(c)(i) of the Policy if “before any notice to respondent of the dispute,” Respondent use or prepare to use “the domain name in connection with a bona fide offering of goods or services.”
In this case, however, Respondent’s non-use of the domain name cannot constitute a bona fide offering of goods and services under the Policy. Respondent is not using the subject domain name in any way whatsoever. Such non-use or “passive holding” of a domain name is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶4(c)(i). Michelin North America, Inc. v. Energie Media Group, FA 451882 (Forum Aug. 7, 2012). In Michelin North, the panel found that inactive use, or “passive holding,” of the disputed domain name by a respondent “permits the inference that [the respondent] lacks rights and legitimate interests in the domain names.” Thermo Electron Corp. v. Xu, FA 713851 (Forum Jul. 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i)); NIC Industries, Inc. v. Abadaba S.A., FA 448503 (Forum Jul. 17, 2012) (finding that respondent was not making a Policy ¶ 4(c)(i) bona fide offering of goods or services because respondent was not making an active use of the disputed domain name); Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005) (finding that a respondent’s non-use of a domain name that is identical to a complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i)); Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in the domain name where the domain name did not resolve to a website, and respondent was not commonly known by the domain name).
Accordingly, Respondent is not making a bona fide offering of goods or services at the subject domain name, and therefore has no legitimate interest under the circumstances described in ¶ (4)(c)(i) of the Policy.
ii) Respondent Is Not Commonly Known By The Subject Domain Name
A respondent’s claim of rights or legitimate interests may also be supported by ¶ 4(c)(ii) of the Policy when the party has “been commonly known by the domain name,” even if no trademark or service mark rights have been acquired. In this case, Respondent is not commonly known by the subject domain name.
Further, Complainant has not given Respondent permission to use its Coachella Marks. Respondent’s unauthorized use of Complainant’s registered service marks and trademarks supports a lack of rights and legitimate interests in the subject domain name. Solstice Marketing Corp. v. Marc Salkovitz d/b/a Image Media, LLC, FA 040087 (Forum Aug. 31, 2007) (respondent was not commonly known by the disputed domain name because, in part, respondent lacked authorization to use complainant’s registered service mark); see also American Girl, LLV v. George Rau, FA 308206 (Forum Apr. 2, 2010) (respondent was not commonly known by the disputed domain name when respondent was “not licensed or otherwise authorized to use” complainant’s mark). Accordingly, Respondent cannot defend under ¶ 4(c)(ii) of the Policy by claiming that Respondent is known by the subject domain name.
iii) Respondent Is Not Making Legitimate Noncommercial Or Fair Use Of The Subject Domain Name
Another circumstance that could support a respondent’s claim of rights or legitimate interest is detailed in ¶ 4(c)(iii) of the Policy, which states:
you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The subject domain name is currently being passively held by Respondent. Such non-use is not a legitimate noncommercial or fair use under ¶ 4(c)(iii) under the Policy. Thermo Electron Corp., supra (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); NIC Industries, Inc., supra (finding that the respondent was not making a legitimate noncommercial or fair use of the domain name because respondent was not actively using the disputed domain name); Hewlett-Packard Co., supra (finding that a respondent’s non-use of a domain name that is identical to a complainant’s mark is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Accordingly, the circumstances described in ¶ 4(c)(iii) of the Policy are also not present for the subject domain names.
e. Respondent Has Registered And Is Using The Subject Domain Name In Bad Faith
The Policy expressly details specific circumstances which, “if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith.” (Policy, ¶ 4(b)). Any one of these express circumstances is sufficient to establish bad faith. A first circumstance applicable here is detailed in ¶ 4(b)(i) of the Policy, which states that
circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name
Respondent’s registration of a domain name that is confusingly similar to Complainant’s famous Coachella Marks, and Respondent’s failure to make any use of the domain name evidences Respondent’s bad faith under Policy ¶ 4(a)(i).
Panels have consistently held that the registration and subsequent non-use of a domain name that is confusingly similar to a complainant’s mark constitutes use in bad faith. Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith); Michelin North, supra (concluding that respondent registered and used the disputed domain names in bad faith under Policy ¶4(a)(iii) where a printout from the resolving website indicated that respondent’s websites were inactive, and there was no evidence the domain names were being used for any other purpose).
Moreover, there is no conceivable use of the subject domain name by Respondent that would be legitimate. Indymac Bank v. Ebeyer, FA 175292 (Forum Sep. 19, 2003) (finding respondent registered the domain names indymax.com among others in bad faith and holding “there is no conceivable way [r]espondent could use the disputed domain names such that they would not infringe on [c]omplainant’s INDYMAC mark, and therefore it is illogical to await [r]espondent’s use of the domain names to find bad faith use.”); Indymac Bank v. Hogan, FA 220042 (Forum Jan. 28, 2004) (holding respondent’s passive holding of the domain names constitutes bad faith and stating “The Panel will not wait until the domain names have actually been used before finding bad faith because it is inconceivable that [r]espondent could use the domain names in a manner that would not infringe upon [c]omplainant’s mark . . .”); Phat Fashions v. Kruger, FA 096193 (Forum Dec. 29, 2000) (finding bad faith in respondent’s registration of the disputed domain name and holding “It makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy. . . . The Panelist, thus, has determined that there is bad faith use by [r]espondent even though his website is not as yet fully activated.”).
In the present case, and in view of the world-wide fame of the Coachella Marks, it is inconceivable that Respondent could use the domain name in a manner that would not infringe upon Complainant’s mark. Further, because the subject domain name is confusingly similar to Complainant’s own website, which features the annual lineup of Coachella artists and live performances by those Coachella artists, any use of the subject domain name (even for an otherwise legitimate news purpose) would be highly likely to cause confusion regarding whether the subject domain name was operated by or otherwise approved by Complainant. Regardless, Respondent’s non-use and passive holding of the domain name since its registration evidences that Respondent lacked any intent to use the domain name for any lawful purpose.
Moreover, the registration of a confusingly similar domain name that is obviously connected with a particular trademark owner by someone with no connection to the trademark owner supports a finding of bad faith under the Policy. America Online, Inc. v. Shenzhen JZT Computer Software Co., Ltd., D2000-0809 (WIPO Sep. 6, 2000); Deutsche Bank AG v. Diego-Arturo Bruckner, D2000-0277 (WIPO May 30, 2000) (“The domain name is so obviously connected with the complainant and its services that its very use by someone with no connection with the complainant suggests opportunistic bad faith.”); FAO Schwarz v. John Zuccarini, FA95828 (Forum Dec. 1, 2000); Household International, Inc. v. Cyntom Enterprises, FA95784 (Forum Nov. 7, 2000) (inferring that the respondent registered the well-known business name with hopes of attracting the complainant’s customers); Woolworths plc. v. David Anderson, D2000-1113 (WIPO Oct. 10, 2000). Because the Coachella Marks is so obviously connected with Complainant, and because the domain name references the Complainant and its services (namely, Complainant’s famous festival), the registration of the domain name by Respondent, who has absolutely no connection with Complainant, clearly evidences bad faith under the Policy.
B. Respondent
Respondent, Domain Admin, registered the disputed domain name believing that because Coachella itself is city (sic), owning the domain name was suitable. After the domain was purchased, a temporary site set up was created. However, before Respondent was able to build out the final landing page and before any traffic was directed to it, Respondent received a cease and desist and the webpage was immediately removed. Respondent abandoned the website and the domain has been sitting as a dead domain. UDRP ¶ 5(i)
Respondent registered the domain for a commercial use in its ordinary course of business and did not act in bad faith. Respondent did not register the domain name for the primary purpose of selling, renting, or otherwise transferring the domain registration to Complainant or to a competitor of Complainant for valuable consideration. Had Complainant issued a transfer request, Respondent would have immediately complied. Rule 3(b)(ix)(3); UDRP ¶ 4(a)(iii)
The Panel finds that Complainant registered its COCHELLA mark with the United States Patent and Trademark Office in January of 2007, in connection with its famous Coachella Valley Music and Arts Festival and that Complainant’s rights predate the registration of the disputed domain name <coachellavipexperiences.com> by the Respondent, Domain Admin, by more than a decade. (Respondent registered the disputed domain name on March 20, 2018.) The Panel notes that the registered WHOIS contact details and business address for the Respondent, Domain Admin, are those of PMA Media Group, of Lehi, Utah, USA.
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.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark because it contains the mark in its entirety and adds the generic terms “VIP” and “experiences”, which terms are related to Complainant’s business activities. The Complainant offers VIP passes as one of its attendance tiers, which allows purchasers to experience exclusive VIP services and access to select VIP areas at the festival. Thus, the incorporation of these generic terms as part of the disputed domain name serves to increase, rather than reduce, the likelihood of confusion by public Internet users seeking information about Complainant’s legitimate business offerings.
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant has established a prima facie case by showing that (1) Respondent is not known by the COACHELLA name and (2) was not authorized by Complainant to use the marks, thus causing the burden of coming forward with rebuttal evidence to shift to Respondent.
The Panel notes that Respondent has submitted no documentary or other proof beyond the mere unsworn, naked assertions of its General Counsel in its Response that: “Respondent, Domain Admin, registered the disputed domain name believing that because Coachella itself is city [sic], owning the domain name was suitable”, and that “Respondent registered the domain for a commercial use in its ordinary course of business and did not act in bad faith.”
Respondent does not appear to be, nor does it allege itself to be, an authorized representative of the City of Coachella, or of any other municipal or governmental authority which might conceivably have rights or a legitimate interest to the name COACHELLA. And as has been noted above, Respondent provides no documents or evidence to support its alleged “commercial use” of the domain in the ordinary course of business.
In relation to its website to which the disputed domain name resolves, the Respondent admits in its Response that: “Respondent received a cease and desist and the webpage was immediately removed.” It seems to this Panel unlikely that the Respondent would have “immediately removed” its website upon the request of another, if the Respondent genuinely believed that it had rights or a legitimate interest in the COACHELLA name. Further, Respondent offers no explanation or details whatsoever as to what legitimate “commercial use” Respondent envisioned for the disputed domain name, whether at the time of registration, or any other time, nor can this Panel conceive of any proper or legitimate use to which the COACHELLA name might be put, save by the Complainant.
Respondent admits in its Response that it had abandoned its website and that the domain has been left dormant ever since. Such continued “passive holding” by Respondent further supports this Panel’s finding that Respondent does not have rights or legitimate interests in the disputed domain name. See, Michelin North America, Inc. v. Energie Media Group, FA 451882 (Forum Aug. 7, 2012). In Michelin North, (Inactive use, or “passive holding,” of the disputed domain name by a respondent “permits the inference that [the respondent] lacks rights and legitimate interests in the domain names.”)
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The disputed domain name is currently being passively held by Respondent. Such use is not a legitimate noncommercial or fair use under ¶ 4(c)(iii) under the Policy. Thermo Electron Corp., supra (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); NIC Industries, Inc., supra (finding that the respondent was not making a legitimate noncommercial or fair use of the domain name because respondent was not actively using the disputed domain name); Hewlett-Packard Co., supra (finding that a respondent’s non-use of a domain name that is identical to a complainant’s mark is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel accepts Complainant’s argument that because the disputed domain name is confusingly similar to Complainant’s own website, which features the annual lineup of Coachella artists and live performances by those Coachella artists, any use of the domain name (even for an otherwise legitimate news purpose) would be highly likely to cause confusion regarding whether the subject domain name was operated by, was or otherwise approved, by Complainant. Respondent’s non-use and passive holding of the domain name since its registration, as well as Respondent’s ready willingness to surrender its website on demand, evidences that Respondent lacked any intent to use the domain name for any lawful purpose.
This Panel finds that Respondent’s vague, unspecified and unsupported assertions of its intended commercial use of the disputed domain name in the ordinary course of its business (which appears to be the business of promoting corporate brands across various media and digital platforms), as well as its naked protestations that it “did not act in bad faith” in registering and using the disputed domain name, are incredible and unworthy of belief. They are rejected.
The Panel finds that Respondent registered and is using the disputed domain name in bad faith and that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coachellavipexperiences.com> domain name be TRANSFERRED from Respondent to Complainant.
David L. Kreider, Panelist
Dated: November 12, 2018
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