Coachella Music Festival, LLC v. ALEXANDER DE ALMEIDA LOPES
Claim Number: FA1611001705267
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is ALEXANDER DE ALMEIDA LOPES (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coachellastuff.com>, registered with eNom, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 30, 2016; the Forum received payment on November 30, 2016.
On December 2, 2016, eNom, Inc. confirmed by e-mail to the Forum that the <coachellastuff.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 December 5, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 2016 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 email@example.com. Also on December 5, 2016, 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 January 4, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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.
1. Complainant holds Service Mark Registry No. 3,196,119 for the COACHELLA mark with the United States Patent and Trademark Office (“USPTO”) (registered Jan. 9, 2007), which has achieved incontestable status. Respondent’s <coachellastuff.com> domain name is confusingly similar because it combines the famous COACHELLA mark with the descriptive word “stuff” as well as the “.com” generic top-level domain (“gTLD”).
2. Respondent has no rights or legitimate interests for the following reasons: (a) Respondent is not commonly known by <coachellastuff.com> domain name; (b) Respondent has not used the domain name with any bona fide offering of goods or services because the resolving website merely displays competing hyperlinks; and (c) Respondent has not made any legitimate noncommercial or fair use because the domain name presumably nets Respondent click-through fees each time Internet users interact with the hyperlinks.
3. Respondent registered and uses the <coachellastuff.com> domain name in bad faith. The inclusion of competing hyperlinks falls within the language of Policy ¶ 4(b)(iv). Further, Respondent could not possibly have registered and used the <coachellastuff.com> domain name without actual and/or constructive knowledge of Complainant and its rights in the COACHELLA mark.
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the COACHELLA mark. Respondent’s 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 <coachellastuff.com> domain name and that Respondent registered and uses the domain name in bad faith.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant uses the COACHELLA mark for entertainment services. Complainant has rights in the mark, for example, because it holds Service Mark Registry No. 3,196,119 for the COACHELLA mark with the USPTO (registered Jan. 9, 2007). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (FORUM Aug. 11, 2015) (“Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Therefore, the Panel agrees that Complainant has established rights in the COACHELLA mark for the purposes of Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <coachellastuff.com> domain name is confusingly similar to Complainant’s mark because it combines the famous COACHELLA mark with the descriptive word “stuff” as well as the “.com” gTLD. Such alterations are insufficient in overcoming confusing similarity. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (FORUM Jan. 21, 2016) (determining that confusing similarity exists where a domain name contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain). Accordingly, the Panel agrees that the <coachellastuff.com> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <coachellastuff.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the use of the domain name. First, nothing in the record demonstrates that Respondent is commonly known by the <coachellastuff.com> domain name, including the WHOIS information which lists “ALEXANDER DE ALMEIDA LOPES” as registrant of record. 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). The Panel agrees that Respondent is not commonly known by <coachellastuff.com> domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant contends that Respondent has not used the domain name with any bona fide offering of goods or services or any legitimate noncommercial or fair use because the resolving website merely displays competing hyperlinks (e.g., “Concert Tickets,” “Coachella Fest Tickets,” and “Show Tickets”). This does not demonstrate Respondent’s rights and legitimate interests in using the domain name pursuant to Policy ¶¶ 4(c)(i) and (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (FORUM July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <coachellastuff.com> domain name in bad faith by including on the resolving website hyperlinks that compete with Complainant. The Panel agrees that Complainant has established bad faith under Policy ¶ 4(b)(iv). See Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (FORUM June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)).
Further, Complainant argues that Respondent registered and uses the <coachellastuff.com> domain name in bad faith because the COACHELLA mark is so well-known, and Respondent therefore must have had knowledge of the mark when registering the domain name. The Panel agrees that the record supports Complainant’s assertion that Respondent undoubtedly had actual knowledge of Complainant’s mark when registering the domain name. See Yahoo! Inc. v. Butler, FA 744444 (FORUM Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coachellastuff.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: January 9, 2017
 The <coachellastuff.com> domain name was registered on July 26, 2016.
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