Coachella Music Festival, LLC v. travis harris
Claim Number: FA1910001866486
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is travis harris (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hochellaatl.com>, registered with GoDaddy.com, LLC.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 13, 2019; the Forum received payment on October 13, 2019.
On October 14, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <hochellaatl.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 October 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 4, 2019 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 October 15, 2019, 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 November 6, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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. Respondent’s <hochellaatl.com> domain name is confusingly similar to Complainant’s COACHELLA mark.
2. Respondent does not have any rights or legitimate interests in the <hochellaatl.com> domain name.
3. Respondent registered and uses the <hochellaatl.com> domain name in bad faith.
B. Respondent failed to file a Response in this proceeding.
Complainant, Coachella Music Festival, LLC., owns and produces the famous Coachella Valley Music and Arts Festival. Complainant holds a registration for the COACHELLA mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,196,119 registered Jan. 9, 2007).
Respondent registered the <hochellaatl.com> domain name on June 5, 2019, and uses it to compete with Complainant.
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”).
The Panel finds that Complainant has rights in the COACHELLA mark under Policy ¶ 4(a)(i) based upon its registration with the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Complainant argues that Respondent merely replaces the first syllable “coa” of the COACHELLA mark with the phonetically similar “ho,” to form “HOCHELLA,” and adds the geographical term “atl” and the “.com” gTLD. These changes are not enough to distinguish the disputed domain name from the COACHELLA mark under Policy ¶ 4(a)(i). See Lucasfilm Entertainment Company Ltd. LLC and Lucasfilm Ltd. LLC v George Ring / DN Capital Inc., FA 1673825 (Forum June 7, 2016) (“Respondent’s <lukasfilm.com> domain name incorporates the LUCASFILM mark and merely substitutes a phonetically identical ‘k’ for the ‘c,’” and is therefore confusingly similar.”)’ see also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Accordingly, the Panel finds that Respondent’s <hochellaatl.com> domain name is confusingly similar to Complainant’s COACHELLA mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent has no rights or legitimate interests in the <hochellaatl.com> domain name as Respondent is not authorized to use Complainant’s COACHELLA mark and is not commonly known by the disputed domain name. The WHOIS information identifies the registrant of the disputed domain name as “travis harris.” The Panel therefore finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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.); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant also alleges that Respondent fails to make a bona fide offering or goods or services or a legitimate noncommercial or fair use because Respondent attempts to disrupt Complainant’s business by diverting internet users to a website where it sells products in direct competition with Complainant. Using a domain name to disrupt complainant’s business in order to sell competing products is evidence that a respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name under Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (“use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant provides screenshots of Respondent’s website which shows Respondent’s use of the subject domain name to sells tickets to musical events and to sell t-shirts. The Panel finds that this is not a bona fide offering or good or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <hochellaatl.com> domain name in bad faith by disrupting Complainant’s business and diverting Internet users to Respondent’s website where it competes with Complainant. Disrupting a complainant’s business and diverting users to a disputed domain name that sells competing goods shows bad faith under Policy ¶¶ 4(b)(iii) and (iv). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (finding bad faith where the respondent used the infringing domain name to disrupt the complainant’s business by diverting Internet users from the complainant’s website to the respondent’s website where it offered competing printer products). Respondent attempts to profit by creating a likelihood of confusion with Complainant’s COACHELLA mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website and products offered through the disputed domain name’s resolving website. Therefore, the Panel finds that Respondent attempts to disrupt Complainant’s business and commercially benefit off of Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant argues that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark, given the global reach of the Internet and the fact that Respondent's attempt to use a phonetically similar domain name. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the COACHELLA mark prior to registering the <hochellaatl.com> domain name, showing bad faith under Policy ¶ 4(a)(iii). See Coachella Music Festival, LLC v. ALEXANDER DE ALMEIDA LOPES, FA 1705267 (Forum Jan. 9, 2017) (finding the respondent had actual knowledge of the complainant’s COACHELLA mark when it registered and used the <coachellastuff.com> domain name—and thus did so in bad faith—because the complainant presented adequate evidence that its mark was well-known and famous).
The Panel finds that 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 <hochellaatl.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 8, 2019
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