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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. Dmitri Prem
Case No. D2000-1550
1. The Parties
The Complainant is Ticketmaster Corporation, a body corporate organized under the laws of the State of Illinois, United States of America, with a place of business at 3701 Wilshire Boulevard, Los Angeles, California 90010, U.S.A.
The Respondent, Dmitri Prem, is apparently an individual. His address has been given as k 5 d. St Petersburg, Russia.
2. The Domain Name and Registrar
The domain name which is the subject of this Complaint is "ticket-master.com".
The Registrar of this domain name is BulkRegister.com, Inc., 7 East Baltimore Street, Baltimore, Maryland 21202, U.S.A.
3. Procedural History
On November 10, 2000, the Complainant by e-mail submitted to the World Intellectual Property Organization Arbitration and Mediation Center ("the Center") a Complaint made pursuant to the Uniform Domain Name Dispute Resolution Policy adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999, ("Uniform Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy approved by ICANN on October 24, 1999, ("the Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Resolution Policy ("the Supplemental Rules"). A hard copy of the Complaint was received by the Center on November 13, 2000.
In accordance with paragraph 4(a) of the Rules and paragraph 5 of the Supplemental Rules, the Center verified that the Complaint satisfied the formal requirements of the Uniform Policy, the Rules and Supplemental Rules. Timely payment of the required fee was made by the Complainant. An Acknowledgement of Receipt was sent to the Complainant by the Center on November 16, 2000.
On November 17, 2000, the Center transmitted a Request for Registrar Verification to the Registrar. On November 24, 2000, the Registrar acknowledged receipt of a copy of the Complaint, confirmed that it was the Registrar of the domain name "ticket-master.com", of which the current registrant was the Respondent, and that the Uniform Policy applied to the registered domain name. The Registrar further disclosed that the Respondent’s address was that stated in paragraph 1 above and that the administrative and technical contact was one James M. van Johns of "Infa dot Net" Web Services, Johnstown, Pennsylvania, U.S.A. Its answer to the request also disclosed that the domain name in issue had been recorded on February 6, 2000, and updated on November 17 and 24, 2000. The current status of the domain name was said to be "Registrar LOCK".
On November 27, 2000, the Center sent to the Respondent and to his Technical and Administrative Contact, a Notification of Complaint and Commencement of Administrative Proceedings. Copies were sent to the Complainant and to ICAAN. In this notice, the Respondent was informed that a Response to the Complaint was required within 20 calendar days from the date of receipt of the notification.
Not having received any communication from the Respondent by the due date, the Center sought to send electronically a Notification of Default to the Respondent. The same notice was sent to his Administrative and Technical Contact at Johnstown.
On December 21, 2000, the Center invited the undersigned to serve as panelist in this proceeding, subject to receipt of an executed Statement of Acceptance and Declaration of Impartiality and Independence ("Statement and Declaration"). On December 29, 2000, the undersigned advised his acceptance, and transmitted by facsimile to the Center a copy of the executed Statement and Declaration.
The Panel has independently determined and agrees with the assessment of the Center that the Complainant has met the formal requirements of the Policy, the Rules and the Supplementary Rules.
The language of the administrative proceeding is English, the language of the registration agreement.
4. Factual Background
Certificates annexed to the Complaint as Exhibit C show that the Complainant is the owner of the trademark TICKETMASTER, registered in the United States of America on January 12,1993, under Registration No. 1,746,016, in association with services defined as "accounting services for ticket sales rendered by computer; and, promoting sporting events, musical concerts and other entertainment events; ticket agency services for sporting events, musical concerts and other entertainment events". The application for registration was based on an allegation that the trademark had been used in commerce since August 1975.
The Complainant also obtained on the same date, under Registration No. 1,746,017, a United States registration of a design mark including the word mark TICKETMASTER (the TICKETMASTER logo), for "services defined as "ticket agency services for sporting events, musical concerts and other entertainment events". Exhibit C also shows that on March 5, 1996, the Complainant obtained Registration No. 1,960,551 of the mark TICKETMASTER ONLINE & Design for "on-line ticket agency services for sporting events musical concerts and other entertainment events, based on first use in commerce in June 1995.
The Complainant has also sought a United States registration for the service mark TICKETMASTER.COM. On October 13,1999, it filed an application (SN 75/820,905), based on intended use of this mark. The application was examined and published for opposition. No opposition was filed and a Notice of Allowance was issued on September 6, 2000, (Exhibit E). The evidence of the Complainant does not disclose the date on which the domain name "ticketmaster.com" was first used. It is noted from Reg. 1,960,551 that on-line services were performed by Ticketmaster from June 1995, but this does not necessarily fix the date of first use of the Complainant’s domain name.
In addition, Exhibit D to the Complaint shows that the Complainant owns Russian Federation Registration No. 94/ 12741 for the TICKETMASTER logo, registered on September 22, 1996, in respect of (as translated) "computerized reservation and ticket issuance machines and apparatus; computer software for reserving seats at musical concerts, shows, and other entertainment and sporting events, for issuing tickets therefor and accounting therefor; and ticket agency services, reservation and ticket issuance services for musical concerts, shows, and other entertainment and sporting events".
The record of the Respondent’s domain name in issue, was created on February 6, 2000. (Exhibit A)
Because the Respondent has submitted no response to the Complaint, the facts above, which are taken from the Exhibits to the Complaint, will be accepted as true for these proceedings.
5. Parties’ Contentions
Complainant makes the following allegations. Factual elements in these allegations are accepted as true in the absence of any response by the Respondent.
(a) Ticketmaster is the global leader in live event ticket sales, providing tickets to more than three hundred and fifty thousand events each year, including sports, arts, family, concert and other events.
(b) Ticketmaster’s network of approximately 2,700 ticketing outlets and charge by phone centers are located in 210 cities in the United States, Canada, the United Kingdom, Ireland, Mexico and Australia. Its annual sales under the trade name and mark TICKETMASTER currently exceed $ 1.6 billion dollars.
(c) Ticketmaster has long used and extensively used its trade name and trademark TICKETMASTER and variations thereof, for its ticketing services throughout the United States and internationally.
(d) Ticketmaster has used the domain name "ticketmaster.com" in connection with its on-line ticketing services. Its site is accessed by hundreds of thousands of people every day. Anyone in the world with a valid credit card and Internet capacity can access Ticketmaster’s web site and buy tickets for entertainment events. Ticketmaster’s affiliates in Canada, Mexico, Ireland, the United Kingdom and Australia maintain similar web sites.
(e) As a result of Ticketmaster’s extensive marketing efforts, and the resulting widespread use of its services, the public has come to recognize and favorably associate the TICKETMASTER mark with the Complainant’s services, creating valuable goodwill in the mark to the benefit of the Complainant.
(f) On September 21, 2000, the Complainant sent to the Respondent, a warning letter (Exhibit G) addressed to the mailing address provided by the Registrar. The letter was returned as undeliverable.
At that date, the web site for the domain name "ticket-master.com" described the site as "under construction" (Exhibit F). Two links were included in the web site on that date. The first invited others to "inquire" about the web site; the second invited others to inquire about the "ticket-master.com" domain name. In each case, the link led to a warning page. In the first of these, the Respondent sought to disavow responsibility for any mislinking to his site when another site was desired (Exhibit H). In the second, the warning included the statement; "You will use this e-mail address ONLY for dollar offers on the "TICKET-MASTER.COM" domain name, and for no other purpose. ….. Use of this e-mail address for any other purpose than an honest domain name inquiry (i.e. harassment, abuse, etc.) may be processed as an illegality." (Exhibit I)
(g) Thereafter, Counsel for the Complainant sent a second warning letter to the Respondent’s administrative and technical contact, with a request that it be forwarded to the Respondent. By October 2, 2000, the Respondent’s web site had ceased to offer the domain name for sale and the warning language was deleted.
The Complainant contends that the Respondent has registered as a domain name a mark which is identical or confusingly similar to the Complainant’s TICKETMASTER trade mark and trade name, that the Respondent has no rights or legitimate interests in respect of its domain name and that the Respondent has registered the domain name in bad faith and used the domain name in bad faith.
Respondent did not contest the above allegations of the Complainant.
6. Discussion and Findings
The Panelist finds that the TICKETMASTER service mark is a strong, arbitrary and well known trade mark applied to ticket agency services offered through ticketing outlets and on-line web sites to provide tickets to sporting contests, musical concerts and other entertainment events. The Complainant’s U. S. federal trademark registrations establish the validity and right to exclusive use of each of the marks in respect of the services defined in the respective registrations. The use, goodwill and registration of the mark TICKETMASTER was established many years before the date of creation of the Respondent’s domain name. Accordingly, the Panelist finds that the Complainant has rights for stating a complaint.
Under paragraph 4(a) of the Policy, the Complainant must prove each of the following elements to obtain a remedy:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate rights in respect of the domain name; and
(iii) that the domain name has been registered and used in bad faith.
Identical or Confusingly Similar
The domain name "ticket-master.com" is not identical to the service mark TICKETMASTER. However, it is quite clear that the element "com" is to be ignored for the purpose of assessing similarity. Moreover, decisions of previous panels have held that the addition or deletion of a hyphen makes an insubstantial difference to the appearance, pronunciation and meaning of the term. Draw-tite, Inc v. Plattsburgh Spring Inc., WIPO Case No. D2000 – 0017; Club Mйditerranйe v. Yosi Hasidim, WIPO Case No. D2000-1350; Gateway,Inc.v. Pixelera.com, Inc., WIPO Case No. D2000-0109. The domain name and trademark at issue are so similar that confusion would be inevitable.
The Panelist finds that "ticket-master.com" is confusingly similar to the service mark TICKETMASTER.
Rights or Legitimate Interests
The Complainant’s use of its trademarks and trade name predates the registration of the registration of the Respondent’s domain name by several years. The Respondent has not shown any association with the Complainant nor any license or other authorization to use the Complainant’s trademark. Nor is there any evidence that the Respondent or any business operated by the Respondent has been commonly known by either the name "Ticket-master" or the domain name.
Complainant’s Exhibit F shows that prior to any warning letter to the Respondent, the latter’s web site included the prominent message " Web site for Domain name TICKET-MASTER.COM is under construction!". It has been held by prior panels that an "under construction " page is neither legitimate use nor preparation for legitimate use. Hamlet Group Inc. v. Lansford WIPO, Case No. D2000-0073.
The Respondent’s web site invited others to "inquire" about purchase of the domain name. The mere offering of the domain name for sale to any party does not constitute a right or legitimate interest in that name. Educational Testing Service v. TOEFL, WIPO Case No. D2000 – 0044. There is no evidence on the record that the Respondent has undertaken any act regarding the disputed domain name other than to offer it for sale.
Paragraph 4(c) of the Policy sets out a number of circumstances which, if proven, would establish rights or legitimate interests in a domain name in responding to a complaint. The Respondent has made no attempt to demonstrate that any of these circumstances apply in the present case.
Absent any evidence on the record establishing the Respondent’s rights or legitimate interests in the domain name "ticket-master.com", the Panelist finds that the Respondent has no rights or legitimate interests in that domain name.
Registered and Used in Bad Faith
There is prior authority that holds that registration in bad faith on the part of the Respondent is to be inferred where the Respondent has used hyphens as a device to obtain a domain name which is otherwise in all respects identical to another’s trademark. SeekAmerica Networks Inc. v. Tariq Masood and Solo Signs, WIPO Case No.D2000 – 0131; Columbia Sportswear Co. v. Mahlon Keeler, WIPO Case No. D2000 – 0206.
However apart from the similarity between the two indicia, other circumstances suggest that the domain name was registered in bad faith.
The absence of information in the application for registration suggests a desire on the Respondent’s part to create a covert position. The report of the Registrar (Exhibit A) contains a minimum of information to identify the Respondent – no telephone number, no facsimile number, no e-mail address and only what appears to be an incomplete postal address, to which mail has proven to be undeliverable (Exhibit G). These circumstances point to the conclusion that the Respondent took deliberate steps to insure that his identity and true business address could not be determined from the register and communication with him could not readily be made. The provision of false information on applying for registration has been held to constitute bad faith.Quixtar Investments, Inc v. Smithberger WIPO Case No. D2000-0138. In the absence of explanation, the omission of significant information may be taken to amount to bad faith in securing a domain name registration.
Respondent’s bad faith in both registering and using the domain name can also be presumed from the extent to which the Complainant’s trade mark was widely used and well known before the domain name was registered. The word "ticketmaster" is not a descriptive term, nor an expression in common use, nor a term which would instantly be considered for the sale of wares, or services, other than the class of services performed by the Complainant. The word "ticketmaster" has a high degree of distinctiveness. Registrations of the Complainant’s trademarks were on record in both Russia and the United States where they could have been easily discovered. It is highly improbable that the Respondent selected the domain name without having knowledge of the Complainant’s trade name or trademarks. Strålfors AB v. P D S AB, WIPO Case No. D2000–0112; Royal Crown Co v. New York Broadcast Services Inc., WIPO Case No. D2000–0315.
It is reasonable to infer that the warning page for inquiries as to the web site (Exhibit H) betrays an anticipation on the part of the Respondent, that the public would be likely to type "ticket-master.com" in the expectation of reaching the Complainant. If, as seems likely, such warning dates from the creation of the web site, it would suggest bad faith in registering, in addition to bad faith in use of the domain name. The warning will not necessarily prevent confusion. It may be misunderstood or ignored by the public or even be an inducement to the curious to proceed. A person, who uses a search engine to find Ticketmaster, is likely to be given a link to the Respondent’s site with the result that the Respondent may profit by deliberately creating confusion with the Complainant’s mark. To the extent that the warning is intended to be a disclaimer of liability, it is insufficient to avoid confusion or a finding of bad faith. See Madonna Ciccone, p/k/a Madonna v. Dan Parisi WIPO Case No. D2000 – 0847.
The warning page for domain name inquiries (Exhibit I) clearly indicates that from the date of creation to the date when the letter of complaint reached the Respondent, the sole purpose of the standard form "Under Construction" web site was to sell the domain name for a profit. The warning page restricted use of an e-mail address to for dollar offers only on the domain name. For those who might resort to the e-mail address for any other purpose, the Respondent raises the prospect of illegality and a threat of undefined process. The Respondent may have seen this as a way to discourage unfriendly inquiries from the Complainant. The fact that both the offer to sell and the warnings disappeared from the web site within days after the sending of the Complainant’s letter to the Respondent’s administrative and technical contacts does not erase past bad faith. If at any time following registration the domain name is used in bad faith, the element of bad faith is established. Ingersoll-Rand Co v. Frank Gully, WIPO Case No. 2000-0021.
The potential for legitimate commercial use of the disputed domain name appears limited. The inclusion of the word "ticket" in the domain name makes the name most suitable for a business associated with the reservation or sale of tickets. There is no evidence that the Respondent had an intention to use the name for an unrelated legitimate commercial purpose. Since the Complainant possesses registrations in Russia and the United States, the Respondent could not use the domain name to promote any ticket-related business, where the Complainant has exclusive rights.
It seems unlikely that the Respondent independently conceived of the domain mark for use with a business unrelated to that of the Complainant or a non-commercial use. Again, no evidence suggests this. Instead, the Respondent invited others to purchase the domain name. In the circumstances, the Panelist considers it appropriate to infer that the purpose of the registration of the disputed domain name and the creation of the web site was to sell the domain name for profit, either to the Complainant or to a competitor of the Complainant, which constitutes bad faith within paragraph 4(b)(i) of the Policy.
This Administrative Panel decides that the Respondent has registered a domain name "ticket-master.com" which is confusingly similar to the Complainant’s trademark TICKETMASTER, that the Respondent has neither rights nor legitimate interest in respect of that domain name and that the Respondent has both registered and used that domain name in bad faith.
The Panel decides that the domain name "ticket-master.com" should be transferred to the Complainant.
James Gordon Fogo
Dated: January 16, 2001