Coachella Music Festival, LLC v. coachella festival / #coachellafest
Claim Number: FA1903001832983
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is coachella festival / #coachellafest (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chellafest.com>, registered with GoDaddy.com, 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.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 7, 2019; the Forum received payment on March 7, 2019.
On March 7, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <chellafest.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 March 8, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 2019 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@chellafest.com. Also on March 8, 2019, 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 Response was received on March 29, 2019.
On April 1, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sebastian M W Hughes 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 is a company incorporated in the state of California and puts on the well-known Coachella festival (the “Festival”).
Complainant is the owner of numerous trademark registrations in the United States including ‘COACHELLA’ (stylized) US registration No. 3,196,129 with a registration date of January 9, 2007; and ‘CHELLA’, US registration No. 5,075,233 with a registration date of November 1, 2016 (the “Trademarks”).
The domain name appropriates textual components from the Trademarks and is confusingly similar to them. Respondent is cyber-squatting and uses the domain to collect email addresses under false pretenses of a ticket giveaway. Respondent has no rights or legitimate interests in the domain name and has registered and uses the domain in bad faith.
B. Respondent
Respondent is a school student at college in California and was asked to create an event website for a class in front end design and user experience. Respondent chose to register the domain name and create a website to which it is linked for the Festival (the “Website”), for educational purposes only. A discussion board apparently of Respondent’s school allegedly showing her and her peers’ submissions to their school is exhibited.
Respondent downloaded a free font and did not appropriate the stylized Trademark. Respondent had no ill intentions when registering the domain and did not intend to generate money from it. All hyperlinks in the domain took users to Complainant’s Festival website. The ‘VIP giveaway’ of two VIP tickets to the 2019 event was genuine as Respondent intended to giveaway two VIP tickets she had been gifted.
Complainant has established all the elements entitling it to transfer of the domain name.
The Rules
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."
Deficient Response
Respondent’s response was received on March 29, 2019, after the deadline on March 28, 2019. The Panel considers that the Response was received late and not in compliance with ICANN Rule 5A, but nonetheless has decided to accept and consider it as the delay of one day was short and as it offers a substantive response to the Complaint.
Incorrect Description of Domain Name
Respondent correctly notes that the domain name is inaccurately given at paragraph 6(a) of the Complaint as <coachellavipeperiencess.com>.
The Panel notes however that the domain name is correctly identified in the header and body (paragraph 7) of the Complaint, and that it is clear from the Exhibits and that Respondent accepts that she purchased the domain name ie <chellafest.com>. The Panel therefore proceeds to consider the substance of the Complaint.
Substantive Elements of the Policy
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.
Respondent does not dispute that the domain name is confusingly similar to the Trademarks.
The domain name incorporates the entirety of one of the Trademarks and a recognizable portion of the other. It adds “fest” which the Panel considers is a term that makes obvious reference to Complainant’s business.
The Panel therefore finds that the domain name is confusingly similar to the Trademark. Complainant has made out the first limb under paragraph 4(a) of the Policy.
Respondent is not known by the domain name and was not authorized by Complainant to use the Trademarks. The burden to show rights or legitimate interests shifts to Respondent (Neal & Massey Holdings Limited v Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014).
Respondent does not contend that she is either making a bona fide offering of goods or services by the domain name nor that she is commonly known by the domain name, and does not fall within paragraph 4(c)(i) or 4(c)(ii) of the Policy.
Paragraph 4(c)(iii) of the Policy permits “legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark”.
Complainant asserts that the Website is used for email phishing, which is neither a legitimate purpose nor fair use. From the evidence on the record, the Panel is unable to conclude that the domain name has been used for phishing. Complainant’s exhibits of screenshots from the Website show textual references to the alleged VIP ticket giveaway and an ‘Enter to Win’ button, but do not show how email addresses are or were collected as alleged.
The Response however accepts that Respondent created the VIP ticket giveaway to show that she could create an email list and did so by creating the Website that mimics the website of the Festival.
The Panel does not consider the VIP ticket giveaway and other content of the Website to be legitimate or involve fair use of the domain name. The Festival website is mimicked and may divert consumers. Complainant has made out the second limb under paragraph 4(b) of the Policy.
The Panel considers Respondent’s contention that she “threw in” the ticket to offer it as a raffle to her classmates to be unlikely. The Panel notes that:
- Respondent had actual knowledge of the Festival and Complainant’s rights in the Trademarks.
- The purchaser’s name of the proof of purchase of the VIP tickets given away by Respondent on the Website has been redacted and that no other evidence has been offered in support.
- The domain contains pages that repeat the Festival lineup with images of artists, offer an alleged waitlist for sold-out tickets and offer to sell various camping tickets to the Festival. Affiliation with the Festival is overwhelmingly suggested.
- Respondent’s assertion that hyperlinks took or take users to the Festival website is not supported by evidence.
- Respondent does not dispute Complainant’s assertion that the registrant address name and address are false.
In light of the manner of use of the Website set out above, the Panel considers that Respondent’s registration of the domain name and use of the Website amounts to more than just a school project. Respondent has set out to create the Website which creates a real risk of consumer confusion and in circumstances where Respondent concedes that she was well aware of Complainant’s rights in the Trademarks.
Complainant has made out the third limb under paragraph 4(c) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chellafest.com> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: 18 April 2019
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