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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Ticketmaster Corporation v. Contractor

Case No. D2008-0579

 

1. The Parties

Complainant is Ticketmaster Corporation, Los Angeles, California, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, United States of America.

Respondent is Contractor, Cudahy, Wisconsin, United States of America.

 

2. The Domain Names and Registrar

The disputed domain names <ticketmasterwarehouse.com>, <ticketmasterwarehouse.info> and <yourticketmaster.info> (the “Domain Names”) are registered with GoDaddy.com, Inc. (the “Registrar”).

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 15, 2008, naming “BC Contractor” as Respondent. On April 15, 2008, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain names at issue. On April 15, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response advising that the registrant organization for each of the Domain Names was not “BC Contractor” but “contractor” or “BL contractor.” The contact information provided by the Registrar shows that the registrant for each of the Domain Names has the same post office box address in Cudahy, Wisconsin, the same email address, and the same telephone number. The Registrar also confirmed that the three Domain Names had been registered on the same day, March 12, 2007.

In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on April 24, 2008, naming “Contractor” as Respondent. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 2, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 22, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 23, 2008. The Center appointed Dana Haviland as the sole panelist in this matter on June 4, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

 

4. Factual Background

Complainant is the owner of four United States trademark registrations for the word Ticketmaster (the “TICKETMASTER Mark” or the “Mark,”): No. 1,746,016 dated January 12, 1993; No. 2,464,562 dated June 26, 2001; No. 2,643,508 dated October 29, 2002; and No. 2,742,550 dated July 29, 2003. Complaint, Annex D. Complainant also owns numerous foreign trademark registrations for the TICKETMASTER Mark, with dates going back as far as 1991 and all predating the registration of the Domain Names. Complaint, Annex E.

Respondent registered the Domain Names <ticketmasterwarehouse.com>, <ticketmasterwarehouse.info> and <yourticketmaster.info> on March 12, 2007.

The <ticketmasterwarehouse.com> Domain Name leads to a web site for ticket sales in direct competition with Complainant. Complaint, Annex F. Around the time of filing of the Complaint, the other two Domain Names were used for web sites with sponsored links to commercial entities offering sales and rentals of party-related items. Complaint, Annex G.

 

5. Parties’ Contentions

A. Complainant

Complainant Ticketmaster Corporation asserts that it is a global leader in live event ticket sales, selling tickets to more than 350,000 entertainment and sporting events each year, including professional sports events, the performance arts, musical concerts, plays, and other events. According to the Complaint, in 2006, Complainant sold over 128 million tickets valued at over USD 1 billion through a network of approximately 6,500 retail ticket center outlets located in cities in the United States, Australia, Canada, the United Kingdom, Ireland, Northern Europe and Mexico, more than 20 worldwide telephone call centers, its “www.ticketmaster.com” web site and other Ticketmaster-branded Internet sites.

Complainant alleges that as a result of its continuous and extensive marketing and sales, and the resulting widespread use of its services, the public has come to recognize and associate the TICKETMASTER Mark with Complainant and that consequently, TICKETMASTER is a well-known and famous service mark.

Complainant contends that it is the owner of registered and common law trademark rights in the mark TICKETMASTER (the “Ticketmaster Mark” or the “Mark”), used in connection with its providing of ticketing services for sporting events, musical concerts and other entertainment events around the world. It provides evidence of its ownership of four United States trademark registrations and numerous trademark registrations in many other countries for its TICKETMASTER Mark, all predating the registration of the Domain Names. Complaint, Annexes D and E. Complainant asserts that the Domain Names incorporate the TICKETMASTER Mark in its entirety and are confusingly similar to the Mark.

Complainant alleges that Respondent has no rights or legitimate interests in the Domain Names. Complainant states that it has not licensed or otherwise permitted Respondent to use the TICKETMASTER Mark or to apply for or use any domain name incorporating the Mark and that Respondent is not commonly known by the Domain Name. To the best of Complainant’s knowledge, Respondent has not acquired any trademark or service mark rights to the Domain Names nor applied for or obtained any state or federal trademark or service mark registrations for the Domain Names.

Complainant alleges that the Domain Names have been registered and are being used in bad faith. Complainant asserts that Respondent had constructive notice and probable actual knowledge of Ticketmaster’s prior rights in its well-known TICKETMASTER mark, and that Respondent obtained the Domain Names to intentionally attract Internet users to Respondent’s web sites by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s web sites. Complainant alleges that the domain <ticketmasterwarehouse.com> resolves to “www.youronlineticketmaster.com”, a web site that offers ticketing services for concerts and other events in direct competition with Complainant, and that the other Domain Names resolve to advertising sites that offer links to various businesses, allegedly including ticketing sites that also compete with Complainant. Complaint, Annexes F and G.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

Under the Policy, in order to prevail, a complainant must prove the following three elements of a claim for transfer or cancellation of a respondent’s domain name:

(i) that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) that the respondent has no rights or legitimate interests in the disputed domain name; and

(iii) that the respondent’s domain name has been registered and is being used in bad faith.

Policy, paragraph 4(a).

A. Identical or Confusingly Similar

Complainant has produced evidence of its registration rights in the TICKETMASTER Mark. Complaint, Annexes D and E. A number of previous cases under the Policy have recognized Complainant’s rights in and to the TICKETMASTER Mark. See, e.g., Ticketmaster Corporation v. Dmitri Prem, WIPO Case No. D2000-1550 (“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”); Ticketmaster Corporation v. WhoisGuard Protected, WIPO Case No. D2008-0350 , Ticketmaster Corporation v. Darcy Andrade, WIPO Case No. D2008-0439.

Each of the Domain Names incorporates the Complainant’s trademark in its entirety, adding only the word “warehouse” or “your” to form the Domain Name. The Panel finds that each Domain Name is confusingly similar to Complainant’s TICKETMASTER Mark. Complainant has thus satisfied the first element of its claim under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

In this case, Complainant asserts Respondent has not been licensed to use Complainant’s trademark, Respondent has not been commonly known by the Domain Name, and Respondent has not made any use of the Domain Name for either a bona fide offering of goods and services or some other noncommercial or fair use under paragraph 4(c) of the Policy. Complainant contends that Respondent therefore has no rights to or legitimate interests in the Domain Name, as required by paragraph 4(a)(ii) of the Policy. Complainant has made out a prima facie case with respect to paragraph 4(a)(ii) and shifted the burden of production to Respondent to show that it has a particular right or legitimate interest in the domain name under paragraphs 4(a)(ii) and 4(c).

It is difficult for a complainant to prove the negative that a respondent does not have any rights or legitimate interests in a domain name in dispute. Starwood Hotels & Resorts Worldwide, Inc., et al., v. KerryWeb Enterprise, Inc., et al., WIPO Case No. D2007-1150; CPP, Inc. v. Virtual Sky, WIPO Case No. D2006-0201. Thus, “where Complainant has asserted that Respondent has no rights or legitimate interests with respect to the domain name it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is uniquely within the knowledge and control of the respondent”. Diebold, Incorporated v. Paul Terwilliger, WIPO Case No. D2003-0416. Respondent has not asserted any right or interest in the Domain Names in this case and has presented no evidence in opposition to Complainant’s assertions in this regard.

The Panel finds that Respondent has no rights or legitimate interests in respect of any of the three Domain Names, and that Complainant has thus shown the second element of its claim, pursuant to paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy requires that Complainant establish both bad faith registration and bad faith use of the Domain Name by Respondent. See World Wrestling Federation Entertainment, Inc. v. Michael Bosman, WIPO Case No. D1999-0001; Shaw Industries Group, Inc. and Columbia Insurance Company v. DomainsByProxy, Inc. and Patti Casey, WIPO Case No. D2007-0555; Patrick Pawlicki v. The Plastiform Company, WIPO Case No. D2007-1206.

Paragraph 4(b) of the Policy sets out, by way of example, four circumstances, each of which, if proven, shall be evidence of the registration and use of the domain name in bad faith for the purpose of paragraph 4 (a)(iii) above:

(i) circumstances indicating that the registrant has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the registrant’s documented out-of-pocket costs directly related to the domain name; or

(ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or

(iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location.

Complainant contends that Respondent has registered and is using the Domain Names in bad faith, alleging facts relevant to a claim pursuant to paragraph 4(b)(iv) of the Policy. Annex F of the Complaint evidences Respondent’s bad faith use of the Domain Name <ticketmasterwarehouse.com> to resolve to a web site offering tickets for sale in direct competition with Complainant. Annex G shows that around the time of the filing of the Complaint, the other two Domain Names led to web sites with commercial links related to the rental or sale of party items, rather than the sale of tickets, so it is not clear that the links were to businesses in direct competition with Complainant, although it is clear that the Domain Name web sites in question were being used for sponsored links for commercial gain.

Respondent has not availed itself of the opportunity to respond and present evidence to contradict Complainant’s allegations and evidence of bad faith.

The evidence of Respondent’s simultaneous registration of three Domain Names incorporating Complainant’s widely-known TICKETMASTER Mark and the unauthorized use of all three Domain Names for commercial gain, and Respondent’s failure to respond or produce contrary evidence, support an inference that by using the Domain Names, Respondent has intentionally attempted to attract Internet users to its web sites for commercial gain by creating a likelihood of confusion with Complainant’s Mark. The evidence is thus sufficient to establish Respondent’s bad faith registration and use of the Domain Names pursuant to paragraph 4(b)(iv) of the Policy. See Ticketmaster Corporation v. Global Access, WIPO Case No. D2007-1921 (bad faith found where “at the time Respondent … acquired the name, Complainant’s service mark rights were readily discoverable, … the domain name at issue was apparently being used to resolve to a web site for purposes of commercial gain, and … the user was bound to confuse the seller of the services with Complainant”). The Panel finds that Complainant has shown bad faith registration and use of each of the three Domain Names, satisfying the third element of its claim in accordance with paragraph 4(a)(iii) of the Policy.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names <ticketmasterwarehouse.com>, <ticketmasterwarehouse.info> and <yourticketmaster.info> be transferred to Complainant.


Dana Haviland
Sole Panelist

Dated: June 18, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0579.html

 

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