DECISION

 

Coachella Music Festival, LLC v. hong xin

Claim Number: FA2404002092663

 

PARTIES

Complainant is Coachella Music Festival, LLC ("Complainant"), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is hong xin ("Respondent"), Cambodia.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <boycottcoachella.com> ("Domain Name"), registered with Gname.com Pte. Ltd..

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on April 10, 2024; Forum received payment on April 10, 2024.

 

On April 11, 2024, Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <boycottcoachella.com> domain name is registered with Gname.com Pte. Ltd. and that Respondent is the current registrant of the name. Gname.com Pte. Ltd. has verified that Respondent is bound by the Gname.com Pte. Ltd. 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 12, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 2, 2024 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@boycottcoachella.com. Also on April 12, 2024, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On May 3, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant owns and produces the Coachella Valley Music and Arts Festival, a well-known multi-day festival first held in 1999.  Complainant has rights in the COACHELLA mark through its registration of the mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 3,196,199 registered January 9, 2007).  Respondent's <boycottcoachella.com> domain name is confusingly similar to Complainant's mark because it incorporates the COACHELLA mark in its entirety and adds the generic word "boycott" and the ".com" generic top-level domain ("gTLD").

 

Respondent lacks rights or legitimate interests in the <boycottcoachella.com> domain name. Respondent is not commonly known by the Domain Name, and Complainant has not authorized, licensed, or otherwise permitted Respondent to use the COACHELLA mark. Additionally, Respondent does not use the Domain Name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the Domain Name resolved to a page offering adult-oriented material.

 

Respondent registered and uses the <boycottcoachella.com> domain name in bad faith. Respondent registered the Domain Name in order to disrupt Complainant's business and divert customers for commercial gain. Additionally, the Domain Name resolves to a page offering adult-oriented material for which Respondent likely receives a commercial gain. Finally, Respondent registered the Domain Name with actual knowledge of Complainant's rights in the COACHELLA mark.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds trademark rights for the COACHELLA mark.  The Domain Name is confusingly similar to Complainant's COACHELLA mark.  Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used the Domain Name in bad faith.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 and/or Confusingly Similar

Complainant has rights in the COACHELLA mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g. Reg. No. 3,196,199 registered January 9, 2007). Registration with the USPTO can sufficiently establish rights in a mark under Policy ¶ 4(a)(i).  See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a national trademark authority).

 

The Panel finds that the <boycottcoachella.com> Domain Name is confusingly similar to the COACHELLA mark as it incorporates the COACHELLA mark adding only the generic word "boycott" and the ".com" gTLD.  The addition of a generic or descriptive term and a gTLD are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Colin LeMahieu v. NANO DARK, FA 1786065 (Forum June 9, 2018) (finding that the addition of a generic term and the generic top-level domain ".com" insufficient to differentiate the <nanodark.com> domain name from the NANO mark); see also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) ("A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.").

 

The Panel notes that the term "boycott" is a negative or pejorative term. In support of its conclusion of confusing similarity the Panel notes that section 1.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition states that "A domain name consisting of a trademark and a negative or pejorative term (such as <[trademark]sucks.com>, <[trademark]구려.com>, <[trademark]吸.com>, or even <trademark.sucks>) is considered confusingly similar to the complainant's trademark for the purpose of satisfying standing under the first element.  The merits of such cases, in particular as to any potential fair use, are typically decided under the second and third elements."

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names."). The Panel holds that Complainant has made out a prima facie case.

 

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the COACHELLA mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA 1621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where "Privacy Service" was listed as the registrant of the disputed domain name).  The WHOIS lists "hong xin" as registrant of record. Coupled with Complainant's unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).

 

The Domain Name resolves to a website offering commercial content unrelated to the Complainant's business (namely adult content) or any descriptive meaning of the Domain Name. The use of a domain name to divert users, for commercial gain, to a website containing unrelated content such as adult content is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) ("Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent's unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii)."). See also Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that "[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.")

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

The Panel finds on the balance of probabilities that, at the time of registration of the Domain Name, March 26, 2024, Respondent had actual knowledge of Complainant's COACHELLA mark. There is no obvious explanation, and none has been provided by Respondent, for a party to register a domain name that consists of the registered COACHELLA mark and a generic term and redirect it to a website offering adult content unrelated to any descriptive meaning of those terms absent any awareness of Complainant and its COACHELLA mark (and intention to capitalize on Complainant's reputation in its COACHELLA mark). In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).

        

The Panel finds that Respondent registered and used the Domain Name in bad faith in order to resolve to a website that displays adult content for which Respondent would be expected to receive revenue.  Use of a disputed domain name to attract users to a website hosting adult-oriented content may be evidence of bad faith per Policy ¶ 4(a)(iii).  See H-D U.S.A., LLC v. Nobuyoshi Tanaka / Personal, FA 1534740 (Forum Jan. 31, 2014) ("Therefore, the Panel concludes that Respondent is acting in bad faith because Respondent is using the <harley-davidsonsales.com> domain name to tarnish Complainant's HARLEY-DAVIDSON mark, as the Panel also finds that the content displayed on the resolving website constitutes adult-oriented content."); see also Andrey Ternovskiy dba Chatroulette v. Abdelbasset Selmi, FA 1638963 (Forum Oct. 28, 2015) (finding the respondent's use of the at-issue domain name to resolve to pornographic content indicated the respondent registered and used the <chatroulette.us> domain name in bad faith per Policy ¶ 4(b)(iv)).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <boycottcoachella.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Nicholas J.T. Smith, Panelist

Dated: May 4, 2024