Coachella Music Festival, LLC v. Gil Datz / Greenclean, LLC
Claim Number: FA1907001851638
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Gil Datz / Greenclean, LLC (“Respondent”), ColoradoUSA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xn--icoachella-co3g.ws> 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 11, 2019; the Forum received payment on July 11, 2019.
On July 12, 2019, Godaddy.Com, Llc; GoDaddy.com, LLC confirmed by e-mail to the Forum that the <xn--icoachella-co3g.ws> 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 July 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 5, 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@xn--icoachella-co3g.ws. Also on July 15, 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 August 6, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 is the owner and operator of an annual music festival. Complainant has rights in its COACHELLA mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,196,119, registered Jan. 9, 2007). See Compl. Ex. G. Respondent’s <i❤coachella.ws> domain name is confusingly similar to Complainant’s mark as Respondent incorporates the COACHELLA mark in its entirety along with the generic term “i❤” (“I love”) and the “.ws” generic top-level domain (“gTLD”).
Respondents has no rights or legitimate interests in the <i❤coachella.ws> domain name. Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is using the disputed domain name to host pay-per-click hyperlinks.
Finally, Respondent’s <i❤coachella.ws> domain name was registered and is being used in bad faith, as the Respondent is attempting to attract Internet users for commercial gain. Additionally, Respondent is not connected with Complainant and could not possibly register and use the disputed domain name without bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent created the disputed domain name on February 7, 2018.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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”).
PRELIMINARY ISSUE: INTERNATIONALIZED DOMAIN NAME
The domain name in dispute, <i❤coachella.ws>, is an internationalized domain name (“IDN”) with the PUNYCODE translation of <xn--icoachella-co3g.ws>. An IDN is a domain name that contains non-traditional characters, such as letters with diacritics or other non-ASCII characters. In order to display characters or symbols in a domain name, the terms of the domain name are encoded into a scheme such as PUNYCODE. For Respondent to display the <xn--icoachella-co3g.ws> properly in the <i❤coachella.ws> domain name, it first had to encode it into the <xn--icoachella-co3g.ws> domain name.
In the past, panels have found IDNs and their PUNYCODE translations to be equivalent. See Damien Persohn v. Lim, FA 874447 (Forum Feb. 19, 2007) (finding an internationalized domain name, <têtu.com>, and its PUNYCODE translation, <xn--ttu-fma.com>, to be one and the same under the Policy); see also Württembergische Versicherung AG v. Emir Ulu, D2006-0278 (WIPO May 4, 2006) (finding that the <xn--wrttembergische-versicherung-16c.com> should be considered as equivalent to the <württembergische-versicherung.com> domain name, based on previous panel decisions recognizing the relevance of I-nav software for translating German letters such as “ä” or “ü” into codes such as <xn--[name]-16c> and similar); see also Fujitsu Ltd. v. tete and Lianqiu Li, D2006-0885 (WIPO Oct. 12, 2006) (finding the <xn--zqsv0e014e.com> domain name to be an exact reproduction of the complainant’s Chinese trademark in a domain name). This Panel finds that the <i❤coachella.ws> domain name is the same as its PUNYCODE translation, <xn--icoachella-co3g.ws>, for purposes of this proceeding.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by adding <i❤coachella.ws> to Complainant’s mark as Respondent incorporates the COACHELLA mark in its entirety along with the generic term “i❤” (“I love”) and the “.ws” generic top-level domain (“gTLD”). This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds the disputed domain name to be confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent possesses no rights or legitimate interests in or to the disputed domain name. Respondent has no right permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is using the disputed domain name to host pay-per-click hyperlinks.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
Also, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant argues Respondent’s <i❤coachella.ws> domain name was registered and is being used in bad faith, as the Respondent is attempting to attract Internet users for commercial gain by hosting competing hyperlinks. Registration and use of a disputed domain name to host competing hyperlinks can be evidence of bad faith under Policy ¶ 4(b)(iv). See Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)). Here, Complainant provided a screenshot of the <i❤coachella.ws> domain name’s resolving webpage, showing hyperlink adds for tickets to Complainant’s festival, as well as competing festivals. See Compl. Ex. H. Therefore, the Panel finds that Respondent’s <i❤coachella.ws> domain name was registered and is being used in bad faith under Policy ¶ 4(b)(iv).
Next Complainant argues Respondent’s <i❤coachella.ws> domain name was registered and is used in bad faith as the Respondent is inactively holding the disputed domain name and has no conceivable use that would not infringe on Complainant’s mark. Bad faith can be found when a disputed domain name that infringes on a famous mark and is then left inactive under Policy ¶ 4(a)(iii). See Alitalia –Line Aerie Italian S.p.A v. Color Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose). Complainant provides screenshots of the resolving webpage of the <i❤coachella.ws> domain name showing hyperlink adds for tickets to Complainant’s festival, as well as competing festivals. See Compl. Ex. H. Complainant also provides articles demonstrating the fame of the COACHELLA mark. See Compl. Exs. B, C, D, and E. Therefore, the Panel finds that Respondent’s <i❤coachella.ws> domain name was registered and used in bad faith under Policy ¶ 4(a)(iii).
Finally, given the fame of Complainant’s mark and the totality of the circumstances, Respondent had actual prior knowledge of Complainant’s trademark and its rights thereto.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <xn--icoachella-co3g.ws> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: August 9, 2019
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