Coachella Music Festival, LLC v. Kine Paulsen
Claim Number: FA2004001892090
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Kine Paulsen (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <porchellafestival.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 15, 2020; the Forum received payment on April 15, 2020.
On April 16, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <porchellafestival.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 April 16, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 6, 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@porchellafestival.com. Also on April 16, 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 May 10, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it owns and produces the famous Coachella Valley Music and Arts Festival, the United States’ premier music and arts festival. Complainant also owns and produces the Chella concert, which takes place between the two weekends of Coachella, and is a complementary event to Coachella often featuring some of the Coachella performers. Complainant claims rights in the CHELLA mark based upon registration in the United States in 2016.
Complainant alleges that the disputed domain name is confusingly similar to its CHELLA mark, as it contains the mark in its entirety, merely combining the beginning of the word “porch” with the CHELLA mark (forming the portmanteau “porchella”), then adding the descriptive word “festival” and the generic top level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s CHELLA mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent is using the disputed domain name to pass off as Complainant in order to redirect Internet users to its own website for commercial gain. Specifically, the resolving website purports to advertise an upcoming fundraising event to “raise fund for relief of the CDOVID-19 virus,” and provides a button to “Donate Now.” Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and uses the disputed domain name in bad faith. Respondent is attempting to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web site or location of a product or service on Respondent’s website or location. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the CHELLA mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CHELLA and uses it to market a music festival.
Complainant’s rights in its mark date back to 2016.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website purports to advertise an upcoming fundraising event related to the COVID-19 pandemic.
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 name merely combines the beginning of the word “porch” with the CHELLA mark (forming the portmanteau “porchella”), then adds the descriptive word “festival” and the gTLD “.com.” Creating a portmanteau formed by combining a complainant’s mark with other words satisfies the confusing similarly prong of the Policy ¶ 4(a)(i). See Coachella Music Festival, LLC v. Mario Ramos, FA 1810673 (Forum Nov. 07, 2018) (finding brochella.vip confusingly similar under the policy); see also Coachella Music Festival, LLC v. Mario Ramos, FA 1810673 (Forum Nov. 07, 2018) (finding brochella.vip confusingly similar under the policy); Coachella Music Festival, LLC v. brandon gordon, FA 1810965 (Forum Nov. 05, 2018) (finding coalchella.com confusingly similar under the policy); Coachella Music Festival, LLC v. cunshuo zhang, FA 1777859 (Forum Apr. 18, 2018) (finding coschella.com confusingly similar under the policy); Coachella Music Festival, LLC v. travis harris, FA 1866486 (Forum Nov. 08, 2019) (finding hochellaatl.com confusingly similar under the policy); Coachella Music Festival, LLC v. Scheril Murray Powell, FA 1876024 (Forum Feb. 17, 2020) (finding caribchella.com, ganjachella.com, gospelchella.com, rapchella.com, reggaechella.com, yardiechella.com confusingly similar under the policy). Furthermore, additions of generic and/or descriptive terms and a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Thus the Panel finds that the <porchellafestival.com> domain name is confusingly similar to Complainant’s CHELLA mark per Policy ¶ 4(a)(i).
Respondent is not licensed or authorized to use the CHELLA mark and is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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.). Here, the WHOIS information of record identifies Respondent as “Kine Paulsen.” The Panel therefore finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to pass off as Complainant in order to redirect traffic to Respondent’s own website. Complainant provides evidence showing that the resolving website prominently features a stylized logo in the same font used by Complainant; the website purports to advertise an upcoming fundraising event to “raise fund for relief of the CDOVID-19 virus,” and provides a button to “Donate Now.” Passing off as a complainant in order to redirect traffic to a respondent’s own website does not constitute a bona fide offering of goods or services, or a noncommercial or fair use per Policies ¶¶ 4(c)(i) & (iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have any rights or legitimate interests in the disputed domain name.
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 name.
Indeed, as already noted, Respondent is attempting to attract, for commercial gain, Internet users to Respondent’s own website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the content thereon. Appropriating a complainant’s mark in a confusingly similar domain name for commercial gain is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv) See Perot Sys. Corp. v. Perot.net, FA 95312 (Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Allianz of Am. Corp. v. Bond, FA 680624 (Forum Jun. 2, 2006) (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 finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(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 <porchellafestival.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 11, 2020
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