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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Professional Golfers’ Association of America v. 24/7 Ticket Service
Case No. D2002-00258
1. The Parties
The Complainant in this administrative proceeding is The Professional Golfers’ Association of America ("PGA"), an international sports organization incorporated under the laws of Florida with its principal place of business at 100 Avenue of the Champions, Palm Beach Gardens, Florida 3341, United States of America.
The Respondent is 24/7 Ticket Service (also referred to as ‘247 Ticket Service’), a business apparently located at 1718 Peachtree Street, Suite 176, Atlanta, Georgia 30309, United States of America.
2. The Domain Name and Registrar
The disputed domain name is <pgachampionshiptickets.com>. The Registrar of the domain name is Network Solutions, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received the Complaint on March 18, 2002, in electronic form, followed by a hard copy on March 21, 2002.
On March 21, 2002, the Center emailed a request for registrar verification to Network Solutions, Inc. ("the Registrar"). The Registrar responded via email on March 25, 2002, confirming that 24/7 Ticket Service (247 Ticket Service) is the registrant for the domain name <pgachampionshiptickets.com> and that 24/7’s billing and administrative contact is Carl R. White of 24/7 Ticket Service.
On March 26, 2002, the Center verified that the Complaint complied with the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and WIPO Supplemental Rules for the Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules"), and that the Complainant paid the required fees.
On March 27, 2002, the Center transmitted a Notification of Complaint and Commencement of Administrative Proceeding and copy of the Complaint to the addresses provided by the Registrar and the Complainant by email and via courier.
These documents advised Respondent that the formal date of commencement of the administrative proceeding was March 27, 2002, and that the Response to the Complaint was due by April 16, 2002.
On April 18, 2002, the Center sent a Notification of Respondent Default via email to the same email addresses.
Having received a Statement of Acceptance and Declaration of Impartiality and Independence from the current Panelist, the Center, on May 16, 2002, transmitted to the Complainant and Respondent via email the Notification of Appointment of Administrative Panel and Projected Decision Date. This document informed the parties that Neil A. Smith had been appointed as the sole Panelist.
On June 3, 2002, the Panelist issued Administrative Panel Order No. 1, requesting information from Complainant regarding the legality of reselling PGA Championship tickets. On June 14, 2002, Complainant submitted a Reply to Administrative Panel Order No. 1., whose nature is discussed below. Following this, the decision due date was moved to July 8, 2002.
4. Factual Background
Complainant is a world-famous organization of professional golfers that promotes the game of golf, organizes professional tournaments, provides golf instruction services and markets a wide variety of golf-related products and services.
According to the Complaint, Complainant owns numerous trademark registrations for marks containing the PGA’s initials including "PGA", Reg. No. 578,653, "PGA CHAMPIONSHIP", Reg. No. 1,661,168, and the PGA of America medallion logo, Reg. No. 1,705,683.
Respondent is the current Registrant of the domain name <pgachampionshiptickets.com>.
5. Parties’ Contentions
Complainant contends that it has built up considerable goodwill through extensive, long-term promotion of its "PGA" and "PGA CHAMPIONSHIP" marks, to which it has exclusive rights. It asserts that it has licensed its "PGA" mark to some third parties, collecting over $1,000,000 in royalties annually, and that it has never authorized Respondent to use the "PGA" or "PGA CHAMPIONSHIP" marks.
According to the Complaint, Complainant became aware of Respondent’s registration and use of the domain name <pgachampionshiptickets.com> on or about January 25, 2002. Shortly thereafter, Complainant contacted Respondent, demanding that Respondent transfer the domain name to Complainant. On February 13, 2002, having received no response to its first letter, Complainant wrote to Respondent once more, again receiving no response. Complainant’s counsel tried to communicate with Respondent a third time on February 21, 2002, leaving a voicemail message for Respondent to which there was no reply.
Complainant filed this Complaint with the Center on March 18, 2002, alleging that the domain name <pgachampionshiptickets.com> is confusingly similar to Complainant’s marks, that Respondent has no rights or legitimate interests in the domain name and that Respondent’s registration and use of the name constitutes bad faith.
Respondent failed to file a Response to the Complaint.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove three elements:(i) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and(iii) the domain name has been registered and is being used in bad faith.
1) Is the Domain Name "pgachampionshiptickets.com" Confusingly Similar to Complainant’s Mark?
Complainant argues that the domain name at issue is confusingly similar to its "PGA CHAMPIONSHIP" mark because consumers will be confused as to the web site’s sponsorship and those looking to purchase PGA Championship tickets will be led to believe Respondent is an authorized seller of those tickets.
Complainant asserts that the incorporation of "pgachampionship" into Respondent’s domain name is likely to mislead the public into believing that Respondent is affiliated with PGA of America. It points to Respondent’s use of a logo incorporating an image very similar to that found in Complainant’s logo as exacerbating the likelihood of confusion. The copies submitted by Complainant of screenshots dated January 25, 2002, each prominently display a logo that Complainant contends could easily be confused with Complainant’s golfer silhouette logo. One of the pages shows a link to PGA of America’s official web site. A third provides a list of frequently asked questions one of which is: "Is PGAChampionshipTickets.com associated with PGA or USGA?" The presence of this question as one most commonly asked by visitors may indicate that the site does create consumer confusion over PGA’s relationship to the site, particularly in the absence of an argument or defense by Respondent.
Because the domain name <pgachampionshiptickets.com> incorporates Complainant’s mark in its entirety, the question is whether addition of the word "tickets" prevents the domain name from being confusingly similar. The Panelist finds that the addition of the word "tickets" to Complainant’s mark is not adequate to avoid consumer confusion in this context, particularly in the absence of any evidence or argument by Respondent on the point. See NCAA v. Randy Pitkin, WIPO Case No. D2000-0903 (concluding that addition of "seats" or "tickets" to a sporting-event-related trademark may be insufficient to prevent confusion among Internet users).
Accordingly, the Panelist concludes that, in the abstract on this record, the domain name <pgachampionshiptickets.com> is confusingly similar to Complainant’s "PGA CHAMPIONSHIP" mark.
2) Does the Respondent Have Rights or Legitimate Interests in Respect of the Domain Name?
Complainant contends that Respondent cannot have any rights or legitimate interests in <pgachampionshiptickets.com> because Complainant has exclusive rights to the "PGA CHAMPIONSHIP" mark and Respondent has no business relationship with Complainant and is not authorized to resell PGA tickets. In support of this assertion Complainant cites Dr. Ing. h. c. F. Porsche AG v. Porsche AG, WIPO Case No. D2002-0103.
WIPO Case No. D2002-0103 involved a dispute over the domain name <porscheexchange.com>. The respondent used the domain name for a web site that enabled Internet users to buy and sell used Porsche cars as well as Porsche automobile parts and accessories. The Panel there concluded that such activity did not constitute fair use when the respondent was not authorized to sell Porsche cars and had no business relationship with the complainant. The Panel cited another WIPO decision (WIPO Case No. D2001-0919, Dr. Ing. h.c. F. Porsche AG v. Gary Charles Brown, a k a Gary Brown, a k a Charlie Brown, a k a Gary Charlie Brown) recommending that terms like "second hand" or "used" be added to domain names that caused confusion over the source of products or sponsorship of a site.
Given the growing concern with cases in which a respondent does not respond to a UDRP complaint, see, e.g., Success by Default: A New Profile of Domain Name Trademark Disputes under ICANN’s UDRP, Markle Foundation study by Dr. Milton Mueller, Syracuse University School of Information Studies, June 24, 2002, at ‘http://dcc.syr.edu/markle/markle-report-final.pdf’, the Panel took the opportunity offered by the UDRP rules to pose questions regarding the legal rights of those reselling tickets to Complainant’s events. In Administrative Panel Order No. 1, the Panelist asked the following questions of Complainant:
1. Is it the Complainant’s position that sale of tickets to PGA Championship golf events by a ticket broker or reseller is illegal?
2. Put another way, are there tickets to PGA events which are sold or given away by Complainant, or authorized representatives or players of the Complainant, which are permitted to be resold to the public by ticket brokers?
In its Reply to Administrative Panel Order No. 1, Complainant wrote, in pertinent part:
The PGA of America is the only authorized seller of tickets to the PGA Championship tournament and offers tickets for sale on its web site at ‘www.pga.com’. The tickets, which are limited in number, are not sold through brokers of any type. Brokers that obtain and resell tickets to the PGA Championship tournament do so in violation of the PGA of America’s ticket requirements, which plainly state that the tickets cannot be resold or packaged in any way. Consequently, there are no tickets to the PGA Championship tournament that are permitted to be resold to the public by brokers. (Emphasis added.)
According to the Complaint and Complainant’s Response to Administrative Panel Order No. 1, PGA of America is the only authorized seller of tickets to the PGA Championship tournament, and Complainant and its authorized representatives and players do not permit PGA event tickets to be resold to the public by ticket brokers. The import of Complainant’s response is its representation that the sale or resale of PGA tickets by ticket brokers is illegal and in violation of PGA ticket agreements. The available evidence suggests that at best Respondent may be seeking to resell PGA Championship tickets.
Complainant exclusively sells PGA Championship tickets on its web site at <www.pga.com>, and its ticket policy expressly forbids resale of tickets. Complainant contends that Respondent’s web site wrongly gives the impression that Respondent is an authorized seller of these tickets and diverts ticket-buying traffic from Complainant’s legitimate web site.
In light of Respondent’s failure to assert or support the legitimacy of its ticket sales, the Panelist accepts Complainant’s representations that Respondent could not legally sell PGA Championship tickets. Respondent’s use of the "PGA CHAMPIONSHIP" mark therefore does not constitute fair use. In the absence of any other proffered right or legitimate interest on the part of Respondent, the Panelist finds that Complainant has met its burden of proof on element (ii) under paragraph 4(a) of the Policy.
3) Has the Respondent Registered and Been Using the Domain Name in Bad Faith?
Paragraph 4(b) of the Policy provides a nonexclusive list of particular circumstances that may be considered evidence of registration and use of a domain name in bad faith. These circumstances include that by using the domain name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site or of a product or service on its web site.
Because it purported to offer PGA tickets for sale, Respondent’s site seemed clearly designed to attract Internet users for commercial gain. As described above, Complainant has offered unrefuted evidence that the site was likely to cause consumer confusion about its relationship to the PGA because it used a logo similar to that of the Complainant and because it offered to sell PGA tickets despite the fact that Respondent was not authorized to do so and that the sale of such tickets would be illegal.
Furthermore, at the time this opinion was written, Respondent’s domain name no longer resolved into an active web site. Respondent has provided no explanation or excuse for the nonuse. In light of the preceding analysis and the Respondent’s failure to proffer any potential legitimate use for the domain name, the Panelist finds that unexplained nonuse of the domain name following the above-described use and failure of Respondent to reply to any of Complainant’s arguments allows the Panel, considering all the unrefuted evidences, to conclude that Respondent is using the domain name in bad faith.
The Panelist decides that Complainant has met its burden of proof under paragraph 4(a) of the Policy, showing that under these circumstances the domain name <pgachampionship.com> is confusingly similar to its mark "PGA CHAMPIONSHIP," that the Respondent does not have a legitimate interest in the domain name and that the domain name was registered and is being used in bad faith. Therefore, the Panelist finds that the domain name must be transferred to Complainant pursuant to paragraph 4(i) of the Uniform Domain Name Dispute Resolution Policy.
Neil A. Smith
Dated: July 8, 2002