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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. Polanski
Case No. D2002-0166
1. The Parties
The Complainant is Ticketmaster Corporation, an Illinois corporation located at 3701 Wilshire Boulevard, Los Angeles, Ca 90010, USA. Its authorized representatives are Robert W. Sacoff and John M. Murphy, Pattishall, McAucliffe, Newbury, Hilliard & Geraldsen, 311 South Wacker Drive, Suite 5000, Chicago, Ill, 60606, USA, and Janet Shih Hajek, Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, 1700 Diagonal Road, Suite 550, Alexandra, VA 22314, USA.
The Respondent is Polanski, U1. Dietla 13/2, Krakow, 31-031, Poland.
2. The Domain Name and Registrar
The domain name at issue is <ticketmasster.com>.
The Registrar is Bulkregister.com, Inc. 7 East Redwood Street, Third Floor, Baltimore 21202, USA
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("the Center") by e-mail on February 18, 2002, and a hardcopy was received by the Center on February 21, 2002. The Center acknowledged the receipt of the Complaint on February 21, 2002.
On February 25, 2002, the Center sent to Bulkregister.com a request for verification of registration data. On February 26, 2002, Bulkregister.com confirmed to be the Registrar, that the Respondent is the Registrant of the domain name <ticketmasster.com>, that the administrative contact and the technical contact is Victor Lashenko, Register Help Corporation.
WIPO verified that the Complaint satisfies the Rules for Uniform Domain Name Dispute Resolution Policy and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy and that payment was properly made. The Panel is satisfied this is the case. On February 27, 2002, the Complaint was properly notified in accordance with the Rules, paragraph 2(a), and the administrative proceedings commenced.
Since no communication was received from the Respondent within the time limit set, the Center sent a default notification to the Respondent, on March 21, 2002.
On March 26, 2002, the Center notified the Parties that an Administrative Panel, composed of a single member, Dr. Gerd F. Kunze, had been appointed and that the Panelist had duly submitted a "Statement of Acceptance and Declaration of Impartiality and Independence" to the Center.
No further submissions were received by the Center or the Panel. The date scheduled for issuance of the Panel’s decision is April 8, 2002.
4. Factual Background
The Complainant is the global leader in live event ticket sales. It serves more than 6200 clients worldwide and acts as the exclusive ticketing service for hundreds of leading arenas, stadiums, performing arts venues and theaters.
The Complainant is the owner of registered marks (trademarks and service marks) for the word TICKETMASTER, standing alone, or in combination with graphical elements, in over 70 countries, including the United States, the European Community and the United Kingdom (where inter alia the word TICKETMASTER is registered) and Poland and the Ukraine (where a TICKETMASTER logo is registered), as listed in Exhibit 5 to the Complaint. In particular, it is the owner of the US service mark registration no. 1 746 016, dated January 12, 1993, for the word TICKETMASTER, covering accounting services for ticket sales rendered by computer, ticket agency services for sports events, musical concerts and other entertainment events, etc. in international class 35; and of the US service mark registration no. 2 464 582, dated June 26, 2001, with application date of Oct. 13, 1999, for the word TICKETMASTER, covering on-line ticket agency services for sporting events, musical concerts and other entertainment events, in class 35. These marks are evidenced by copies of the US-registrations in Exhibit 4 to the Complaint. Whilst "ticket" and "master" are words of common English language, their combination is arbitrary and original. As a result of the long standing extensive use of the mark TICKETMASTER by the Complainant it has become internationally known and, at least in the United States, well-known for the Complainant’s activities.
The Complainant uses the domain name <ticketmaster.com> in connection with online-ticketing services, as evidenced by a color print-out of the home page for its website in Exhibit 6. Additionally, its affiliates in Canada, Mexico, Ireland, the United Kingdom and Australia maintain similar websites at local ccTLDs (as evidenced in Exhibit 7).
The Respondent registered on October 27, 2000, the domain name <ticketmasster.com> and is using it for a link to a pop-up dialog box at http://www.gotoo.com/treasure/tickets.html promoting gambling and encouraging the Internet user to enter an on-line gambling web site. After clicking "OK" within this dialog box, the user is taken to one of several gambling websites (as evidenced by Exhibit 9). However, when the visitor decides not to follow that invitation and is clicking "cancel" or closing the dialog box, the browser window directs the Internet user to the home page of <TicketsNow.com>, a virtual ticket browser website (as evidenced by Exhibit 10).
5. Parties’ Contentions
The Complainant submits that (1) the domain name <ticketmasster.com> is identical or confusingly similar to a trademark or service mark, in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; (3) the domain name was registered and is being used in bad faith.
The Respondent has failed to submit any statement. It has therefore not contested the allegations of the Complaint and the Panel shall decide on the basis of Complainant’s submissions, and all inferences that can reasonably be drawn therefrom (Rule 14(b) or the Policy).
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the domain name of the Respondent be transferred to the Complainant:
1) the domain name is identical or confusingly similar to a trademark or service mark ("mark") in which the Complainant has rights; and
2) the 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.
1) Confusing Similarity with a Mark in which the Complainant has rights
The domain name <ticketmasster.com> is not identical with the mark "TICKETMASTER" in which the Complainant has rights. However, the only difference is the addition of one letter which gives the impression to be a misspelling of the Complainant’s mark (the generic tld indicator".com" cannot be taken into consideration when judging confusing similarity). The additional "s" is likely to be overlooked and in view of the close similarity of "masster" to the common word "master" the domain name will not be pronounced differently. Based on general principles of confusing similarity of marks, the domain name <ticketmasster.com> is therefore nearly identical and clearly confusingly similar to the mark TICKETMASTER, in which the Complainant has rights. Also, when taking into account the particularities of the Internet, confusion will arise. The domain name is a typographical variation of the Complainant’s mark and domain name, which is likely to be erroneously typed by Internet users who intend to accede the Complainant’s website under its domain name <ticketmaster.com> and are mistyping it. In view of the use of the domain name made by the Respondent (see above 4B), Respondent’s domain name <ticketmasster.com> directs such users either to a gambling site or to <ticketsnow.com>, the website of a competitor of the Complainant, providing services nearly identical to those offered by the Complainant. Such use is likely to mislead customers into believing that the Respondent, respectively <ticketsnow.com> are somehow associated with the Complainant (such as affiliated, sponsored or otherwise endorsed).
That such misspelling or typographical variation of a mark is confusingly similar to the Complainant’s mark has repeatedly been held in decisions under the Policy (e.g. WIPO Case No. D2000-1160, Alta Vista Company v. O.F.E.Z.; WIPO Case No. D2001-0302, Dow Jones & Company Inc. and Dow Jones LP v. John Zuccarini).
2) Legitimate Rights or Interests in respect of the Domain Name
The Respondent has no connection or affiliation with the Complainant, who has not consented to the Respondent's use of the domain name, which is so similar that it gives the impression to be a misspelling the Complainant’s mark. Respondent does not make any use of the domain name for its own legitimate commercial or non-commercial activities, if any. As said before, Respondent’s domain name <ticketmasster.com> leads to a pop-up dialog box, which directs users either to a gambling site or to <ticketsnow.com>, the website of a competitor of the Complainant, providing services nearly identical to those offered by the Complainant. Such use which as a kind of "postal address" links the visitor to other websites offering competitive products has repeatedly been held not to be a bona fide offering of goods or services. Even if the Respondent does not use its domain name to promote commercial activities of its own, the Panelist is satisfied that such use cannot be considered to be non-commercial. It would make no sense for the Respondent to provide links to gambling sites and to a competitor of the Complainant, if it where not to attract a fee, the more as such arrangements are common. Finally, for the same reason that the Respondent does not promote its own commercial activities, the Respondent has not been able to become known under that domain name.
In the absence of any submission of the Respondent, the Panel therefore concludes that the Respondent has no rights or legitimate interests vis-à-vis the Complainant in the domain name <ticketmasster.com>.
3) Registration and Use in Bad Faith
For a Complainant to succeed, the Panel must be satisfied that a domain name has been registered and is being used in bad faith.
The Respondent has not attempted to sell the domain name to the Complainant. However, it uses it in a manner which must be considered to be use in bad faith and at the same time that use is a strong indication that the Respondent has registered its domain name in bad faith:
The Panelist assumes that the Respondent had knowledge of the Complainant’s mark TICKETMASTER, when it registered the domain name <ticketmasster.com>. Such conclusion cannot only be drawn from the actual use that the Respondent is making of its domain name, but also from the fact that it chose an apparent misspelling of the Complainant’s mark and domain name <ticketmaster.com>. It cannot reasonably be imagined that the Respondent chose for its domain name a combination of the English word "ticket" and the spelling "masteer" instead of "master", a second English word, if it had not known the Complainant’s mark and domain name (the very existence of the Complainant’s domain name prevented the Respondent from registering "ticketmaster.com"). This alone is already an indication of registration in bad faith. Taking into account the use which the Registrant is making of its domain name, as described before, and in the absence of any submission of the Respondent to the contrary, the Panelist is satisfied that the Respondent has registered the domain name in bad faith, i.e. in order to be able to make that use of its domain name.
As said before, the Respondent has been using the domain name <ticketmasster.com> as a link to a pop-up dialog box in order to direct visitors, who are mistyping the Complainant’s domain name, either to a gambling site or to the homepage of a competitor of the Complainant. These visitors cannot escape. Even if they try to leave the dialog box, which is appearing when they type the Respondent’s domain name, by clicking "cancel" or even by closing the dialog box, they will be linked to the website of a competitor of the Complainant. By such use the Respondent intentionally attempts to attract Internet users to an on-line location, which creates a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of that location. T he fact that such confusion may be dispelled, and replaced by annoyance or disgust once the nature of the site is revealed, does not negate the fact of initial confusion, as rightly has been concluded in the decision WIPO Case No. D2001-0761, Royal Bank of Canada v. Personal.
In the absence of any submission of the Respondent, the Panelist has no doubt that the Respondent makes that use of his domain name for commercial gain. Thus it is pursuing an activity, sometimes called "typosquatting" (see the above cited decision WIPO Case No. D2001-0302), which must be considered to be bad faith under the Policy. Even if item 4b) iv) of the Policy refers to the website or other location of the Respondent, whilst the Respondent uses its domain name primarily in order to revert the visitor to other websites, the Panelist considers the circumstances of the case to be evidence of registration and use in bad faith, at least comparable to the circumstances listed in item 4b) iv) of the Policy. If one considers the pop-up dialog box, which is appearing when an Internet user types the Respondent’s domain name, to be "an other on-line location", the Respondent’s activity clearly is covered by item 4b) iv). Be it as it may, the circumstances as listed in item 4b) i) to iv) are not exhaustive and the Panelist is satisfied that the pattern developed by the Respondent is evidence of registration and use in bad faith.
The Complainant has submitted a number of additional arguments to demonstrate that the Respondent acted in bad faith. There is indeed strong evidence that the Respondent provided false contact information when applying for the domain name registration, since a cease and desist letter of the Complainant was returned undeliverable. Also there are striking similarities of the factual background of the present case and other cases, where the infringing domain names resolved to pop-up boxes with texts comparable to the one used by the Respondent and also leading to gambling sites. Furthermore, the Respondent’s address was at least in once case, decided by the Panelist, used by the same administrative and technical contact, Victor Lashenko, where a domain name was registered and used to divert visitors to a gambling site and where, similar to the present case, incomplete and probably wrong information as concerns the Respondent and its administrative contact was given (WIPO Case No. D2000-1614, Inter-IKEA v. Polanski).
However, in the absence of any submission of the Respondent, the Panelist is satisfied that already the before described pattern of activity of the Respondent, as evidenced by the Complainant, leads to the clear conclusion that the Respondent has registered and is using the domain name <ticketmasster.com> in bad faith, which may be summarized as follows:
The Respondent intentionally registered as its domain name a misspelling of the Complainant’s mark and domain name, in order to misdirect for commercial gain visitors through a link to a pop-up box to either a gambling site, or to the homepage of a competitor of the Complainant. Thus it created and continues to create a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the websites to which the traffic is diverted.
The Panel decides that the Complainant has proven each of the three elements of paragraph 4(a) of the Policy.
Pursuant to paragraph 4(i) of the Policy and paragraph 15 of the Rules, the Panel requires that the registration of the domain name <ticketmasster.com> be transferred to the Complainant.
Dr. Gerd F. Kunze
Dated: April 8, 2002