Coachella Music Festival, LLC v. Domain Administrator / China Capital Investment Limited
Claim Number: FA1706001734230
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Domain Administrator / China Capital Investment Limited (“Respondent”), China, Hong Kong S.A.R.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cooachella.com>, registered with Interweb Advertising D.B.A. Profile Builder.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 1, 2017; the Forum received payment on June 1, 2017.
On June 8, 2017, Interweb Advertising D.B.A. Profile Builder confirmed by e-mail to the Forum that the <cooachella.com> domain name is registered with Interweb Advertising D.B.A. Profile Builder and that Respondent is the current registrant of the name. Interweb Advertising D.B.A. Profile Builder has verified that Respondent is bound by the Interweb Advertising D.B.A. Profile Builder 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 June 8, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 28, 2017 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 firstname.lastname@example.org. Also on June 8, 2017, 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 July 3, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain name be transferred from Respondent to Complainant.
Complainant Coachella Music Festival, LLC (“Complainant”) owns and produces the famous Coachella Valley Music and Arts Festival (“Coachella”), the country’s premier music and arts festival. Complainant owns the exclusive rights to Coachella, including the COACHELLA, COACHELLA (stylized), COACHELLA MUSIC FESTIVAL, and COACHELLA VALLEY MUSIC AND ARTS FESTIVAL trademarks and service marks (collectively, “the Coachella Marks”), which Complainant uses in connection with its famous Coachella festival.
Respondent is a prolific cybersquatter who has targeted numerous famous and distinctive trademarks, including Complainant’s famous Coachella Marks. Respondent, who is in no way affiliated with Complainant or Coachella, has registered cooachella.com (a mistyping of Complainant’s mark – merely inserting an extra letter “o”), which it uses to misdirect consumers to a commercial parking website which hosts pay per click advertisements for Complainant’s festival as well as other competitive services. Respondent is engaged in cybersquatting in violation of the Policy, and Complainant requests the subject domains name be transferred.
a. About Complainant’s Coachella Music Festival
Held annually at the 78-acre Empire Polo Club in the beautiful Southern California desert, Coachella is one of the most critically acclaimed music festivals in the world. The first Coachella festival, held in October 1999, drew some 25,000 attendees into the California desert a few hours’ drive from Los Angeles, in Indio, California. Over the years, both’s attendance, and its prominence within the music industry, have grown. The caption from a collection of photographs accompanying a story from CNN reads, “[a]n aerial view taken from a helicopter on Sunday shows how big the  festival is.” Additionally, attendance to the sold-out event aggregated over the multi-day festival is estimated at nearly 600,000 attendees. For the past several years, tickets to Coachella have typically sold out in about an hour.
Coachella mixes some of the most groundbreaking artists from all genres of music along with a substantial selection of art installations from all over the world. The Festival attracts some of the world’s biggest mega-stars to perform. The list of artists who have performed include: Beastie Boys, Bjork, Coldplay, Daft Punk, Depeche Mode, Drake, Jane’s Addiction, Jay-Z, Kanye West, Madonna, Nine Inch Nails, Oasis, Paul McCartney, Prince, Radiohead, Rage Against the Machine, Red Hot Chili Peppers, Roger Waters, The Cure, The Pixies, and Tool, to list only a very few. To be sure, Coachella is about more than the music. The festival’s venue also includes camping facilities for some 15,000 attendees (complete with a karaoke lounge and a general store), and an amazing selection of food and beverages from a wide range of restaurants. Coachella also features an art exhibit which includes many pieces of art (including sculpture and so-called “interactive” art). Taken together, the music, the food, the art, and of course, the fellowship of other attendees, the Festival is more than just a concert to attend—it truly is an experience.
Connecting the Festival’s community together is the website available at coachella.com. This website has received over 24 million page views in the past year and has hosted nearly 8 million users in over 11 million sessions. Complainant also produces a mobile app for its Festival for use on iPhone / iPad and Android devices.
Complainant extensively promotes Coachella through a variety of media, including via the Internet, including and on numerous social media sites including Facebook, Twitter, and Instagram, to list a few. The Coachella’s Facebook page has over 1.7 million likes; its Twitter account is being followed by over seven hundred thousand Twitter users; and its Instagram account is being followed by over nine hundred thousand Instagram users.
Complainant invested over $625,000 dollars in 2016 in media and related content to promote Coachella. An Internet search using the Google search engine for the term “Coachella music festival” provided over 1 million hits; a cursory review of the results shows nearly every hit was related to Coachella; and the first search result was to www.coachella.com website. Tracked online media impressions (advertisements) for Coachella from March 1, 2016 through May 1, 2016 exceeded 70 million impressions. Over 500 credentialed journalists, from print media, radio, television, and the Internet reported live from the 2016 Festival. The journalists represented media outlets such as diverse as Time, Billboard, and the BBC.
b. Complainant’s Rights In Its Coachella Marks
Complainant owns multiple registrations, covering a wide variety of goods and services, for its Coachella Marks. Specifically, Plaintiffs own: United States Service Mark Registration No. 3,196,119 for COACHELLA. This Registration is incontestable under 15 U.S.C. §1065; United States Trademark Registration No. 4,270,482 for COACHELLA; United States Service Mark Registration No. 3,196,129 for COACHELLA (stylized); United States Trademark Registration No. 4,266,400 for COACHELLA (stylized); United States Service Mark Registration No. 3,196,128 for COACHELLA VALLEY MUSIC AND ARTS FESTIVAL. This Registration is incontestable under 15 U.S.C. §1065; United States Trademark Registration No. 3,965,563 for COACHELLA VALLEY MUSIC AND ARTS FESTIVAL; and United States Trademark Registration No. 4,008,651 for COACHELLA VALLEY MUSIC AND ARTS FESTIVAL. Many of these registrations are incontestable under 15 U.S.C. §1065. Each registration recites the following services: “Entertainment, namely, organizing and producing musical events;” and each registration claims a first use in commerce of October, 1999.
In addition to these federal registrations, which carry the presumption of validity, Complainant owns common law trademark rights in its Coachella Marks from over a decade of extensive use in commerce.
Complainant’s rights in each of its Coachella Marks pre-date the registration of the subject domain name by many years. Complainant, through its predecessor-in-interest, began using the Coachella Marks in connection with its Festival in October, 1999.
Complainant diligently protects its trademark and service mark rights in its Coachella Marks. Complainant diligently contacts individuals and businesses using the Coachella Marks in an unauthorized manner. Because of the potential for online ticketing fraud and the resulting consumer harm, Complainant is extremely diligent where domain name(s) and/or websites involve tickets and/or ticketing. See Coachella Music Festival, LLC v. Mark Williams, FA 547864 (Forum Apr. 18, 2014) (transferring coachella-weekend1.com which was used in connection with unlawful ticket sales to Complainant’s festival and online fraud); Coachella Music Festival, LLC v. Mark Jardino, FA 626326 (Forum Aug. 7, 2015) (Panel Decision to transfer ticketscoachella.com to Complainant); Coachella Music Festival, LLC v. josh greenly, FA 629217 (Forum Aug. 10, 2015) (Panel Decision to transfer coachellaticketsonline.com to Complainant); Coachella Music Festival, LLC v. Michael Liechty, FA 633389, (Forum Aug. 26, 2015) (Panel Decision to transfer coachella2016tickets.com to Complainant); see also Coachella Music Festival, LLC v. Vertical Axis Inc., FA 429552 (Forum; Dismissed Apr. 16, 2012) (case dismissed to permit transfer of the domain name coachellamusicfestival.com to Complainant).
c. The Subject Domain Name Is Confusingly Similar To Complainant’s Famous Coachella Marks
The subject domain name is each confusingly similar to Complainant’s trademarks. To support a finding that a subject domain name is identical or confusingly similar to a complainant’s mark all that is required is:
that the domain name misappropriate sufficient textual components from the mark such that an ordinary Internet user who is familiar with the goods or services distributed under the mark would upon seeing the domain name likely think that owing to the visual and/or phonetic similarity between the mark and the domain name that an affiliation exists between the site identified by that domain name and the owner or licensed user of the mark.
Awesome Kids LLC v. Selavy Comm., D2001-0210 (WIPO Apr. 16, 2001); see also Jews for Jesus v. Brodsky, 993 F.Supp. 282, 296 (D.N.J.), aff’d, 159 F.3d 1351 (3d Cir. 1998) (holding JEWS FOR JESUS and jewsforjesus.org confusingly similar).
The subject domain name cooachella.com is confusingly similar to Complainant’s Coachella Marks. The subject domain name features Complainant’s entire COACHELLA mark as the dominant portion of the domain name, and merely adds an additional letter “o” to form the domain name. Such common misspellings and/or typographical variations have consistently been found to satisfy the confusingly similar prong of ¶4(a)(i) of the Policy. See AltaVista v. O.F.E.Z. et al., Case No. D2000-1160 (WIPO Feb. 28, 2001) (finding that a misspelling or typographical variation of a well-known mark is deemed to be “confusingly similar” to the complainant’s mark in violation of paragraph 4(a)(i) of the UDRP); See also AltaVista Company v. Astavista.com, FA 95251 (Forum Aug. 17, 2000) (finding altaivsta.com and astavista.com confusingly similar to ALTAVISTA); Encyclopedia Britannica, Inc. v. John Zuccarini and The Cupcake Patrol a/k/a Country Walk a/k/a Cupcake Party, Case No. D2000- 0330 (WIPO June 7, 2000) (finding domain names brtannica.com, britannca.com, and britannica.com virtually identical and confusingly similar to complainant’s marks “BRITANNICA” and britannica.com).
Lastly, the addition of the generic top-level domain name (e.g., .com, .net, etc.) to the subject Domain Name is irrelevant to the confusingly similar analysis. See Dermalogica, Inc. and The International Dermal Institute, Inc. v. Andrew Porter and Zen Day Spa, FA 1155710 (Forum Apr. 14, 2008). Thus, the addition of the generic top-level domain name is insufficient to avoid a finding of confusing similarity between the subject domain name and Complainant’s Coachella Marks. Accordingly, both applicable case law and prior administrative proceedings support a finding that the subject domain name is confusingly similar to Complainant’s marks.
d. Respondent Has No Rights Or Legitimate Interest In The Subject Domain Name
Respondent has no rights or legitimate interest in the subject domain name. Under the Policy, once Complainant assert a prima facie case against Respondent, Respondent bears the burden of proving that it has rights or legitimate interests in the subject domain name pursuant to ¶4(a)(ii) of the Policy. AOL LLC v. Gerberg, FA 780200 (Forum Sep. 25, 2006). A complainant establishes a prima facie case by a showing that (1) a respondent is not known by a complainant’s marks or (2) authorized to use the marks. G.D. Searle & Co. v. Martin Mktg., FA 118277 (Forum Oct. 1, 2002); Dunkin’ Brands Group, Inc. et al. v. Giovanni Laporta, FA 568547 (Forum Aug. 25, 2014).
Here, Respondent is not known by the subject domain name. Complainant has not licensed Respondent to use the Coachella Marks nor does Respondent have any legal relationship with Complainant that would entitle Respondent to use Complainant’s Coachella Marks. Respondent has no legitimate reason for using Complainant’s Coachella Marks as the dominant part of the subject domain name.
i) Respondent Is Not Making A Bona Fide Offering Of Goods Or Services At The Subject Domain Name
The Policy details several circumstances which, if proven, could support a finding that Respondent has a legitimate interest in the subject domain name. For instance, Respondent could have rights under ¶4(c)(i) of the Policy if “before any notice to respondent of the dispute,” Respondent used or prepared to use “the domain name[s] in connection with a bona fide offering of goods or services.”
In this case, however, Respondent’s infringing use of the domain name cannot constitute a bona fide offering of goods and services under the Policy. A screen capture showing Respondent’s use of the subject domain name to host parking pages populated by pay per click advertisements is attached to this Complaint. As can be seen from the screen capture, the parking pages contain pay per click advertisements for Complainant’s Coachella music festival, as well as other directly competitive music festivals.
It is well settled that the use of a domain name to host a parking page populated by pay per click advertisements does not constitute a bona fide offering of goods or services. Hard Rock Cafe International (USA), Inc. v. Ryhan Estate Vineyards, FA 35573 (Forum Jan. 14, 2009) (use of a confusingly similar domain name to resolve to a website displaying third-party links to unrelated websites is not a “a bona fide offering of goods and services”); see also Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Forum Sep. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain name).
Accordingly, Respondent is not making a bona fide offering of goods or services at the subject domain name, and therefore has no legitimate interest in the subject domain name under the circumstances described in ¶(4)(c)(i) of the Policy.
i) Respondent Is Not Commonly Known By The Subject Domain Name
A respondent’s claim of rights or legitimate interests may also be supported by ¶4(c)(ii) of the Policy when the party has “been commonly known by the domain name,” even if no trademark or service mark rights have been acquired. In this case, Respondent is not commonly known by the subject domain name. Respondent’s name, as listed in the whois information for the domain name, is, “Domain Administrator” and “China Capital Investment Limited.”
Further, Complainant has not given Respondent permission to use its Coachella Marks. Respondent’s unauthorized use of Complainant’s registered service marks and trademarks supports a lack of rights and legitimate interests in the subject domain name. Solstice Marketing Corp. v. Marc Salkovitz d/b/a Image Media, LLC, FA 040087 (Forum Aug. 31, 2007) (respondent was not commonly known by the disputed domain name because, in part, respondent lacked authorization to use complainant’s registered service mark); see also American Girl, LLV v. George Rau, FA 308206 (Forum Apr. 2, 2010) (respondent was not commonly known by the disputed domain name when respondent was “not licensed or otherwise authorized to use” complainant’s mark). Accordingly, Respondent cannot defend under ¶4(c)(ii) of the Policy by claiming that Respondent is known by the subject domain name.
ii) Respondent Is Not Making Legitimate Noncommercial Or Fair Use Of The Subject Domain Name
Another circumstance that could support a respondent’s claim of rights or legitimate interest is detailed in ¶4(c)(iii) of the Policy, which states:
you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
With respect to these circumstances, Respondent has made a plainly commercial use of the subject domain name. The subject domain name is clearly used to misdirect users to a commercial website. Accordingly, the circumstances described in ¶4(c)(iii) of the Policy are not present.
b) Respondent Has Registered And Is Using The Subject Domain Name In Bad Faith
The Policy expressly details specific circumstances which, “if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith.” (Policy, ¶4(b)). Any one of these express circumstances is sufficient to establish bad faith.
A first circumstance applicable here is detailed in ¶4(b)(iv) of the Policy, which states that
by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
It is well settled that the use of a domain name that is identical or confusingly similar to a complainant’s mark to host a parking page is evidence of bad faith. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶4(b)(iv)); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 16, 2007) (concluding that Internet users would likely be confused as to the source or sponsorship of the blackstonewine.com domain name with the complainant because the respondent was redirecting Internet users to a website with links unrelated to the complainant and likely receiving click-through fees in the process). Here, just like in Williams-Sonoma, Constellation Wines and countless other decisions under the Policy, Respondent’s use of a domain name which is confusingly similar to Complainant’s famous mark to host a commercial parking page supports a finding of bad faith under the Policy.
Respondent’s bad faith under the Policy is also evidenced by Respondent’s registration of numerous other domain names which infringe the rights of other famous and distinctive trademark owners. See Policy ¶4(b)(ii). In addition to the domain name at issue in this Complaint, Respondent’s has also targeted numerous other famous or distinctive marks, and been the respondent in numerous UDRP proceedings which ordered the transfer of other infringing domain names. See Jaguar Land Rover Limited v. Domain Administrator / China Capital Investment Limited, FA1715444 (Forum Mar. 16, 2017) (transferring jaguarwhiteplains.com); Morgan Stanley v. Domain Administrator / China Capital Investment Limited, FA723382 (Forum 05/08/2017) (transferring morganstanleyvalencia.com); Fitness International, LLC v. Domain Administrator / China Capital Investment Limited, FA1729056 (Forum 06/01/2017) (transferring lafitnessgymn.com); Partners Group Holding AG v. Domain Admin, China Capital Investment Limited, D2016-2501 (WIPO Jan. 24, 2017) (transferring partnersgroupp.com); Berlitz Investment Corporation v. China Capital Investment Limited, D2016-2197 (WIPO Dec. 16, 2016) (transferring berlitz-algerie.com).
Finally, it is also settled law that the registration of a confusingly similar domain name that is obviously connected with a particular trademark owner by someone with no connection with the trademark owner suggests bad faith. See Household Int’l, Inc. v. Cyntom Enters., FA 096784 (Forum Nov. 7, 2000) (inferring that the respondent registered a well-known business name with hopes of attracting the complainant’s customers). Because the Coachella Marks are so obviously connected with Complainant, and because the subject domain name so clearly reference Complainant’s Coachella Marks, registration by Respondent, who has no connection with Complainant, strongly supports a finding of bad faith.
Respondent failed to submit a Response in this proceeding.
(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.
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 registered the Coachella marks—used in connection with its famous music festival—with the United States Patent and Trademark Office (“USPTO”) as early as 2007 (e.g., Reg. No. 3,196,119, registered Jan. 9, 2007). Registration with the USPTO (or any other governmental authority for that matter) suffices to demonstrate rights in a mark under Policy ¶4(a)(i), even if Respondent is located in another country. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office). Complainant has established its rights in or to the COACHELLA marks under Policy ¶4(a)(i).
Complainant claims the <cooachella.com> is confusingly similar to its COACHELLA marks because the domain name is composed entirely of the marks, with only two minor additions: an additional letter “o,” and a “.com” gTLD. The addition of letters—particularly of those that create a common misspelling—fails to sufficiently distinguish a domain name from a registered mark. See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’). A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs. See, e.g., AOL Inc. v. Morgan, FA 1349260 (Forum Nov. 4, 2010) (concluding that the addition of the generic top-level domain (“gTLD”) “.com” does not distinguish the disputed domain name from the mark). The disputed domain name is confusingly similar to Complainant’s COACHELLA marks in <cooachella.com> under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also 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.”).
Complainant claims Respondent has no rights or legitimate interests in the <cooachella.com> domain name as required by Policy ¶4(a)(ii). Complainant has neither authorized nor licensed Respondent’s use of the COACHELLA marks. Respondent is not commonly known by either disputed domain name within the meaning of Policy ¶4(c)(ii). Where there is no formal response, the WHOIS information and common sense allow the Panel to decide Respondent is not commonly known by the domain name. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). The WHOIS information concerning <cooachella.com> identifies “Domain Administrator / China Capital Investment Limited” as the registrant. There is no obvious relationship between Respondent’s name and the disputed domain name. Therefore, the Panel must find Respondent is not commonly known by the <cooachella.com> domain name and lacks rights and legitimate interest pursuant to Policy ¶4(c)(ii).
Complainant claims Respondent financially profits from <cooachella.com> through pay-per-click hyperlinks. Many of these links resolve to advertisements for Complainant’s own music festival, as well as to the websites of Complainant’s direct competitors. Hyperlinks that generate click-through fees for the holder of a domain name are commercial in nature, and therefore cannot be a legitimate noncommercial or fair use. The hyperlinks do not qualify as a bona fide offering of goods or services. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use). Complainant sufficiently made its prima facie showing against Respondent’s actions do not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶4(c)(i) and (iii).
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant makes two prominent assertions that fall within the articulated provisions of Policy ¶4(b): Respondent has exhibited a pattern of bad faith registration as described in Policy ¶4(b)(ii), and Respondent uses the disputed domain name for commercial gain of the kind articulated in Policy 4(b)(iv).
Complainant claims Respondent has an established pattern of bad faith domain registrations. Respondent has targeted numerous other famous or distinctive marks. However, there has been no showing Respondent has been unable to secure a domain name which reflects Complainant’s trademarks (and essential element under this provision of the UDRP). This Panel declines to find bad faith under Policy ¶4(b)(ii).
Complainant claims Respondent uses the <cooachella.com> domain name to attract Internet users in order to personally profit by way of pay-per-click advertisement revenue. Capitalizing on the goodwill and notoriety of widely known marks in this way is evidence of bad faith use and registration under Policy ¶4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 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). Respondent registered and uses the disputed domain name in bad faith within the meaning of Policy ¶4(b)(iv).
Complainant claims Respondent registered the domain with actual knowledge of the COACHELLA mark because of the global fame of Complainant’s mark. Respondent does not dispute this fact. It appears Respondent registered the <cooachella.com> domain name in bad faith according to Policy ¶4(a)(iii) because Respondent actually knew about Complainant’s mark. See Immigration Equality v. Brent, FA 1103571 (Forum Jan. 11, 2008) ("That Respondent proceeded to register a domain name identical to, and with prior knowledge of Complainant's mark is sufficient to prove bad faith registration and use under Policy ¶4(a)(iii).").
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <cooachella.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Monday, July 17, 2017
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