Coachella Music Festival, LLC v. Mike Gau
Claim Number: FA2001001878581
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California. Respondent is Mike Gau (“Respondent”), Missouri.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <buycoachellatickets.net> (‘the Domain Name’), registered with Google LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or 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 January 12, 2020; the Forum received payment on January 12, 2020.
On January 13, 2020, Google LLC confirmed by e-mail to the Forum that the <buycoachellatickets.net> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 January 15, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 4, 2020 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@buycoachellatickets.net. Also on January 15, 2020, 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 January 15, 2020.
On January 16, 2020, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarised as follows:
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 Name registered in 2019 features the entire COACHELLA trade mark as the dominant portion of the domain name with the generic words “buy” and “tickets” added which does not prevent confusing similarity. The Domain Name plainly misappropriates sufficient textual components from the famous COACHELLA mark that an ordinary Internet user familiar with the Complainant’s festival would upon seeing any of 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 has not been used so there is no bona fide offering of goods or services or non commercial legitimate or fair use.
The Domain Name is being passively held and has been registered and used in bad faith. Registration of a domain name that is obviously connected with a particular trade mark owner by someone who has no connection with that owner supports a finding of bad faith.
B. Respondent
The Respondent did not submit a formal Response but indicated he agreed to a transfer to the 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 Name registered in 2019 has not been used, but the Respondent has agreed to transfer 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.
Consent to Transfer
The Panel notes that the Respondent has consented to transfer the Domain Name to the Complainant. However, in case the jurisdiction of the Panelist to transfer the Domain Name depends on the three limbs of the Policy being satisfied the Panelist decides the case as follows:
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 and has been used since 1999), the generic words ‘buy’ and ‘tickets’ and the gTLD “.net.” Previous panels have found confusing similarity when a respondent merely adds a generic term 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 underling mark held by the Complainant). The Panel agrees that the addition of the generic term “buy” and “tickets” to the Complainant's mark does not prevent confusing similarity between the Domain Name and the Complainant's trade mark under the Policy.
The gTLD “.net” 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).
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 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 provided any response to this Complaint except agreement to a transfer to the Complainant and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. 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).
There has been no use of the Domain Name. See Hewlett-Packard Co. v Shemesh, FA 434145 (Forum April 20, 2005) (Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy 4(c)(i).)
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 the allegations in the Complaint or explained why it should be allowed to register a domain name containing a sign confusingly similar to the Complainant’s mark, simply agreeing to transfer.
The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trade mark of another. Passive holding of a domain name containing a mark with a reputation can be bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
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 Para 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <buycoachellatickets.net> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: January 16, 2020
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