Coachella Music Festival, LLC v. Miger Diaz / Consulting MGD LLC
Claim Number: FA2004001890563
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, United States. Respondent is Miger Diaz / Consulting MGD LLC (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <coachellafestivalshuttles.com> and <coachellafestivalrides.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 1, 2020; the Forum received payment on April 1, 2020.
On April 2, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <coachellafestivalshuttles.com>, and <coachellafestivalrides.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 April 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 22, 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@coachellafestivalshuttles.com, postmaster@coachellafestivalrides.com. Also on April 2, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 24, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it owns and produces the Coachella Valley Music and Arts Festival (“Coachella”), the country’s premier music and arts festival. Held annually at the 78-acre Empire Polo Club in the beautiful Southern California desert, Coachella is one of the most critically acclaimed music festivals in the world. The first Coachella festival, held in October 1999, drew some 25,000 attendees into the California desert a few hours’ drive from Los Angeles, in Indio, California. Over the years, both the festival’s attendance and its prominence within the music industry have grown. Attendance to the sold-out event aggregated over the multi-day festival is estimated at nearly 600,000 attendees. For the past several years, tickets to Coachella have typically sold out in about an hour. Coachella mixes some of the most groundbreaking artists from all genres of music along with a substantial selection of art installations from all over the world. The festival attracts some of the world’s biggest mega-stars to perform. The list of artists who have performed include: Beastie Boys, Beyoncé, Bjork, Coldplay, Daft Punk, Depeche Mode, Drake, Jane’s Addiction, Jay-Z, Kanye West, Madonna, Nine Inch Nails, Oasis, Paul McCartney, Prince, Radiohead, Rage Against the Machine, Red Hot Chili Peppers, Roger Waters, The Cure, The Pixies, and Tool, to list only a very few. To be sure, Coachella is about more than the music. The festival’s venue also includes camping facilities for some 15,000 attendees (complete with a karaoke lounge and a general store), and an amazing selection of food and beverages from a wide range of restaurants. Coachella also features an art exhibit which includes many pieces of art (including sculpture and so-called “interactive” art). Taken together, the music, the food, the art, and of course, the fellowship of other attendees, the Festival is more than just a concert to attend—it truly is an experience. Complainant provides multiple official transportation options and recommendations in conjunction with its annual music festival. Complainant has rights in its COACHELLA mark through registration in the United States in 2007. The mark is famous.
Complainant alleges that the disputed domain names are confusingly similar to its mark as they incorporate the mark in its entirely and merely add the generic terms “shuttles” and “rides” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain names 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 merely passively holding the disputed domain names.
Further, says Complainant, the disputed domain names were registered and are being used in bad faith, as Respondent is inactively holding them. Additionally, the disputed domain names are likely to cause confusion among Internet users, and there is no conceivable way for Respondent to use the disputed domain without further infringement of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark COACHELLA and uses it to market a music festival. The mark is well known.
Complainant’s rights in its mark date back to at least 2007.
The disputed domain names were registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain names are not being used. Complainant provides transportation services in conjunction with its music festival.
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”).
The disputed domain names incorporate Complainant’s mark in its entirety and merely add the generic, descriptive terms “festivals”, “shuttles”, and “rides” and the “.com” gTLD. Adding descriptive words and a gTLD to a complainant’s mark may not be sufficient to distinguish a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”); see also Bridgestone Corporation v. Vahid Chitsaz, FA 15367 (Forum Aug. 1, 2007) (holding that the addition of the related terms “tire” and “sale” to complainant’s BRIDGESTONE mark “do not negate any confusing similarity between the disputed domain name and the mark”). Therefore, the Panel finds that the <coachellafestivalshuttles.com> and <coachellafestivalrides.com> domain names are confusingly similar to Complainant’s COACHELLA mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain names: absent a reply, relevant information, such as WHOIS information, can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record shows “Miger Diaz / Consulting MGD LLC” as the registrant of the disputed domain names. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
The disputed domain names are not being used. Inactive holding of a disputed domain name is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”). Thus the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, the disputed domain names are not being used. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case, Complainant’s trademark is well known. It is difficult to envisage any use of the disputed domain names that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) (“Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy”); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant’s well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int’l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) (“The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith”).
There has been no response to the Complaint. The disputed domain names appear to refer to transportation services that are offered by Complainant. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain names are not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coachellafestivalshuttles.com>, <coachellafestivalrides.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 25, 2020
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