Coachella Music Festival, LLC v. gina leslie
Claim Number: FA1811001815420
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is gina leslie (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <coachellafeast.com> and <coachella-feast.com> (‘the Domain Names’), registered with Register.com, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 7, 2018; the Forum received payment on November 6, 2018.
On November 8, 2018, Register.com, Inc. confirmed by e-mail to the Forum that the <coachellafeast.com> and <coachella-feast.com> domain names are registered with Register.com, Inc. and that Respondent is the current registrant of the names. Register.com, Inc. has verified that Respondent is bound by the Register.com, 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 November 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 3, 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@coachellafeast.com, postmaster@coachella-feast.com. Also on November 13, 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 December 4, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 owns and produces the famous Coachella Valley Music and Arts Festival. It owns, inter alia the trade mark COACHELLA in the USA for organising and producing musical events 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 Names feature the entire COACHELLA trade mark as the dominant portion of the domain name with the generic term ‘feast’ added. The Domain Names plainly misappropriate sufficient textual components from the famous COACHELLA mark that an ordinary Internet user familiar with the Complainant’s festival and camping there would upon seeing any of the Domain Names likely think that an affiliation exists between the site at the Domain Names and the Complainant or its festival.
The addition of a gTLD to the subject domain name is irrelevant to the confusing similarity analysis.
Respondent has no rights or legitimate interests in the Domain Names. Respondent is not known by Complainant’s COACHELLA mark. Complainant has not licensed the Respondent to use its COACHELLA mark.
The Domain Names registered in 2018 point to a parking page featuring pay per click advertisements. This is not a bona fide offering of services or a legitimate noncommercial fair use.
The Domain Names have been registered to confuse and divert internet users for commercial gain. Using a domain name containing a trade mark to point to a pay per click page is registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant owns and produces the famous Coachella Valley Music and Arts Festival. It owns, inter alia the trade mark COACHELLA in the USA for organising and producing musical events 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 Names registered in 2018 has been used to point to a parking page featuring pay per click links offering competing services to the 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.”).
Identical or Confusingly Similar
The Domain Names consist of the Complainant's COACHELLA mark (which is registered, inter alia in USA for products and services relating to entertainment and has been used since 1999), the generic term ‘feast’, in the case of <coachella-feast.com> a hyphen, and the gTLD .com. Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic terms ‘feast to the Complainant's mark does not distinguish the Domain Names from the Complainant's trade mark pursuant to the Policy.
The gTLD .com does not serve to distinguish the Domain Names from the COACHELLA mark, which is the distinctive component of the Domain Names. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Finally in the case of <coachella-feast.com>, a hyphen does not prevent that domain name being confusingly similar to the Complainant’s trade mark.
Accordingly, the Panel holds that the Domain Names are confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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).
The web sites to which the Domain Names redirect offer links to commercial concert ticket services not associated with the Complainant. They do not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Vance Int’l Inc v Abend, FA 0970871 (Forum June 8, 2007) (Concluding that the operation of a pay per click web site at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated website or if the respondent is itself commercially benefitting from the click through fees).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why she should be allowed to register domain names containing the Complainant’s mark.
In the opinion of the Panelist the use made of the Domain Names in relation to the sites attached to the Domain Names is confusing and disruptive in that visitors to the sites might reasonably believe they are connected to or approved by the Complainant as they offer links to competing services under the Complainant’s mark. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to her websites by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web sites likely to disrupt the business of the Complainant. See Univ of Houston Sys v Salvia Corp., FA 637920 (Forum March 21, 2006)
As such, the Panel holds that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under Policy 4(b)(iii) and (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 <coachellafeast.com> and <coachella-feast.com> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 4, 2018
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