SeatGeek, Inc. v. Diego Sebastian Flores Reyes
Claim Number: FA2205001997447
Complainant is SeatGeek, Inc. (“Complainant”), represented by Nivita Beri of Honigman LLP, Michigan, USA. Respondent is Diego Sebastian Flores Reyes (“Respondent”), Mexico.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <seatgeek-mx.com>, registered with Akky Online Solutions, S.A. de C.V.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 23, 2022. The Forum received payment on May 23, 2022.
On May 27, 2022, Akky Online Solutions, S.A. de C.V. confirmed by e-mail to the Forum that the <seatgeek-mx.com> domain name is registered with Akky Online Solutions, S.A. de C.V. and that Respondent is the current registrant of the name. Akky Online Solutions, S.A. de C.V. has verified that Respondent is bound by the Akky Online Solutions, S.A. de C.V. registration agreement, which is in Spanish, 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 June 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint in both English and Spanish, setting a deadline of June 21, 2022 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@seatgeek-mx.com. Also on June 1, 2022, the English and Spanish language 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 30, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Complainant contends that the proceeding should take place in English for several reasons: the domain name is comprised of English-language words; Complainant’s SEATGEEK trademark is registered in Mexico; Respondent replied in English to Complainant’s cease and desist letter; and the website to which the domain name resolves is in English, as are all of the “click-through” links displayed on the website.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
Complainant, SeatGeek, Inc., is a Chicago-based ticket-broker and ticket reseller. Complainant provides a downloadable mobile application and a desktop platform that enables users to buy and sell tickets for sporting, musical, theatrical, entertainment, social, recreational and other cultural events. Complainant also allows users to browse events, view interactive color-coded seat maps, complete ticket purchases, and receive electronic or print tickets.
Respondent lacks rights or legitimate interests in the <seatgeek-mx.com> domain name. Respondent is not commonly known by the domain name. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the domain to pass itself off as Complainant.
Respondent registered and uses the domain in bad faith. Respondent used the domain name to pass itself off as Complainant and disrupt Complainant’s business. Respondent had constructive knowledge of Complainant’s rights in the mark. Finally, the domain name currently resolves to a webpage that hosts third-party links.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Complainant has shown that it has rights in the SEATGEEK mark through several registrations, including with the USPTO (e.g. Reg. No. 4,062,477, registered November 29, 2011) and with the Mexico Trademark Office (e.g. Reg. No. 1786140, registered August 14, 2017). The Panel finds Respondent’s <seatgeek-mx.com> domain name to be virtually identical and confusingly similar to Complainant’s mark, since it incorporates the mark in its entirety, merely adding a hyphen and the geographic abbreviation for Mexico, “mx”, which do nothing to distinguish the domain name from the mark, and the inconsequential “.com” gTLD, which may be disregarded.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <seatgeek-mx.com> domain name was registered on April 13, 2022, many years after Complainant has shown that its SEATGEEK mark had become very well-known. It resolved to a website in both Spanish and English, with the look and feel of Complainant’s website, and displaying Complainant’s SEATGEEK logo. It is currently inactive.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <seatgeek-mx.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s very well-known SEATGEEK mark when Respondent registered the <seatgeek-mx.com> domain name and did so primarily for the purpose of disrupting the business of a competitor. Further, that Respondent has intentionally attempted 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 of Respondent’s website and of the services promoted on that website. This demonstrates registration and use in bad faith under Policy ¶ 4(b)(iii) and (iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <seatgeek-mx.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: July 6, 2022
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