Coachella Music Festival, LLC v. Victoria Vari / Coachella Vibes
Claim Number: FA1904001839291
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Victoria Vari / Coachella Vibes (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coachella-vibes.com> (‘the Domain Name’), registered with Tucows Domains 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 April 17, 2019; the Forum received payment on April 17, 2019.
On April 18, 2019, Tucows Domains Inc. confirmed by e-mail to the Forum that the <coachella-vibes.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 April 18, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 8, 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@coachella-vibes.com. Also on April 18, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On May 10, 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
The Complainant’s contentions can be summarized as follows:
Complainant owns and produces the famous Coachella Valley Music and Arts Festival. It owns, inter alia the trademark COACHELLA in the USA for organizing 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 Name registered in 2019 features the entire COACHELLA trade mark as the dominant portion of the domain name with the generic term ‘vibes’ added. The Domain Name plainly misappropriates 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 the Domain Name likely think that an affiliation exists between the site at the Domain Name 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 Name. Respondent is not known by Complainant’s COACHELLA mark. Complainant has not licensed the Respondent to use its COACHELLA mark
The Domain Name points to a site featuring a photo of the Complainant’s event which is being used to sell goods including swimwear and bags. This is not a bona fide offering of services or a legitimate noncommercial fair use.
The Domain Name has been registered to confuse and divert internet users for commercial gain. Using a Domain Name containing a trademark to point to an unconnected commercial site is registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns and produces the famous Coachella Valley Music and Arts Festival. It owns, inter alia the trademark COACHELLA in the USA for organizing 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 Name registered in 2019 features a photo of the Complainant’s event and offers clothes including swimwear for sale.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's COACHELLA mark (which is registered, inter alia in USA for products and services relating to entertainment services and has been used since 1999), the generic term ‘vibes’, 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 term ‘vibes’ to the Complainant's mark does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy.
The gTLD “.com” does not serve to distinguish the Domain Name from the COACHELLA mark, which is the distinctive component of the Domain Name. 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, a hyphen does not prevent that domain name being confusingly similar to the Complainant’s trademark. See Health Devices Corp. v. Aspen STC, FA 158254 (Forum July 1, 2003) (The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4 (a)(i)).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such, the Panel holds that ¶ 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint.
The Domain Name is connected to a web site which uses the sign ‘Coachella Vibes’ prominently and although this sign appears on the WhoIs details the Domain Name was not registered until 2019 and there is no corroborating evidence to show that the Respondent is commonly known by the Domain Name. see also Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name).
The web site to which the Domain Name redirects offers commercial goods such as swimwear. A photograph of the Complainant’s event is used on the site which implies that there is a commercial connection between the Respondent’s retail services business and the Complainant. The Panel finds this use is confusing. See Am. Intl Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to advertise services which competed with the Complainant's business did not constitute a bona fide use of goods and services).
As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name 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 it should be allowed to register a domain name containing the Complainant’s mark.
In the opinion of the panelist the use made of the Domain Name in relation to the site attached to the Domain Name is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as they offer links to commercial goods under the Complainant’s mark and using an image of the Complainant’s event. Panels have found bad faith registration and use under Policy ¶ 4(b)(iv) where a respondent was diverting Internet users searching for the complainant to its own website and likely profiting. See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site and goods on it likely to disrupt the business of the Complainant.
As such, the Panel holds that the Complainant has made out its case that the Domain Name was 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 <coachella-vibes.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 11, 2019
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