Coachella Music Festival, LLC v. Vladic Ravich / Artery
Claim Number: FA2005001895608
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, United States. Respondent is Vladic Ravich / Artery (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coachella.wtf> (‘the Domain Name’), registered with Name.com, 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 May 10, 2020; the Forum received payment on May 10, 2020.
On May 12, 2020, Name.com, Inc. confirmed by e-mail to the Forum that the <coachella.wtf> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 May 18, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 8, 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@coachella.wtf. Also on May 18, 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 June 11, 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. 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’ contentions can be summarised as follows:
Complainant owns and produces the famous Coachella Valley Music and Arts Festival. It owns, inter alia, the registered trade mark COACHELLA in the USA for organising and producing musical events and the associated common law rights and uses that mark in connection with its festival, first use in commerce recorded as 1999. It has a web site at <coachella.com>.
The Domain Name registered in 2020 is identical to the Complainant’s COACHELLA trade mark adding only the gTLD “.wtf” which does nothing to distinguish the Domain Name from Complainant’s famous COACHELLA mark.
Respondent, who is in no way affiliated with the Complainant has used the Domain Name to misdirect consumers looking for the Complainant and its festival to a commercial parking web site which hosts pay-per-click advertisements including competing services. This cannot be a bona fide offering of goods and services. Since it is commercial use it cannot be legitimate non commercial or fair use. Respondent is not commonly known by the Domain Name. Complainant has not licensed the Respondent to use the Domain Name. Respondent has no rights or legitimate interests in the Domain Name.
It is well settled that use of a domain name that is identical to a complainant’s mark for a parking page hosting pay-per-click links is evidence of bad faith. The Respondent has intentionally attempted to attract for commercial gain Internet users to its web site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its web site or products or services on it.
Registering such a domain name referencing the Complainant and having no interest in the Domain Name is also 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 registered trade mark COACHELLA in the USA for organising and producing musical events and the associated common law rights and uses that mark in connection with its festival, first use in commerce recorded as 1999. It has a web site at <coachella.com>.
The Domain Name registered in 2020 has been used for a parking page containing sponsored links including some linking to the Complainant’s competitors.
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 in the USA for entertainment services and has been used since 1999) and the gTLD “.wtf”.
The gTLD “.wtf” does not serve to distinguish the Domain Name from the Complainant’s 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 identical 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 answered this Complaint 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). The use of the Domain Name is commercial so cannot be non commercial legitimate fair use.
It it is clear from the evidence that the Respondent has used the page attached to the Domain Name to promote competing services which are not connected with the Complainant through pay-per-click links. The usage of the Complainant’s mark which has a significant reputation in relation to entertainment services in relation to similar services not connected with the Complainant is not fair as the page attached to the Domain Name does not make it clear that there is no commercial connection with the Complainant. As such it cannot amount to the bona fide offering of goods and services.
The Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use the Complainant’s trade mark in this way. 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
As determined above the Respondent's use of the site attached to the Domain Name is commercial and he is using it to make profit from linking to services not associated with the Complainant in a confusing manner.
It is clear from the use of such links that the Respondent is aware of the significance of the COACHELLA name and the Complainant’s rights and was more likely than not to have been so aware at the time of registration.
It seems clear that the use of the Complainant’s mark in the Domain Name would cause people to associate the website at the Domain Name with the Complainant and its business and services.
Accordingly, the Panellist 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’ trade mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s web site or services offered on it, thereby disrupting the Complainant’s business in opportunistic bad faith.
As such, the Panelist believes 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 paras 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.wtf> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 11, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page