юридическая фирма 'Интернет и Право'
Основные ссылки










Яндекс цитирования

Рассылка 'BugTraq: Закон есть закон'





Источник информации:
официальный сайт ВОИС

Для удобства навигации:
Перейти в начало каталога
Дела по доменам общего пользования
Дела по национальным доменам

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Chelsea Football Club Limited v. Official Tickets Ltd

Case No. D2008-1574

1. The Parties

The Complainant is Chelsea Football Club Limited, London, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by IPS Law LLP, United Kingdom.

The Respondent is Official Tickets Ltd, South Carolina, United States of America.

2. The Domain Name and Registrar

The disputed domain name <official-chelsea-tickets.com> is registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 16, 2008. On October 17, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On October 18, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 29, 2008 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on November 10, 2008. 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 the Respondent of the Complaint, and the proceedings commenced on November 12, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 2, 2008. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on December 3, 2008.

The Center appointed John Swinson as the sole panelist in this matter on December 11, 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

The Complainant is a professional football club based in London, United Kingdom. The club was founded in 1905, and plays in the Premier League (England’s primary football competition). One of the club’s most recent successes was winning both the League Cup and FA Cup in 2007.

The Respondent is based in South Carolina, United States of America.

The disputed domain name was registered on October 24, 2007. The website operating from the disputed domain name has the following heading:

Welcome to Official Chelsea Tickets. Book your official tickets online trough [sic] our secure system. All tickets booked are confirmed and guaranteed.

The website then lists upcoming games involving the Complainant, with an option to buy or view tickets.

5. Parties’ Contentions

A. Complainant

The Complainant makes the following contentions:

The Complainant owns trade mark rights for the word CHELSEA (such as UK Trade Mark No. 2381367 and Community Trade Mark No. 3344561). The Complainant has also registered various domain names which incorporate the CHELSEA trade mark, such as <chelseafc.com> (being the principal website where users can purchase tickets to games, or information on other ticket retailers).

The website operating from the disputed domain name offers tickets for various fixtures of the Complainant, and provides click-on links to websites which offer tickets for the Spanish and Italian football leagues. The website also offers tickets to other sporting events and concerts, contains advertising and appears to offer a hotel reservations service.

The Respondent also appears to operate a number of similar websites, which relate to other football clubs in the Premier League (such as “www.official-fulham-tickets.com”, “www.official-liverpool.tickets.com”). The display of these websites is similar to the website operating from the disputed domain name.

The disputed domain name is confusingly similar to the Complainant’s trade marks. The addition of generic words (“official” and “tickets”) is insufficient to avoid a finding of confusing similarity, because the disputed domain name incorporates the Complainant’s trade mark in its entirety, and the distinctive part of the domain name is clearly “Chelsea”. Use of the words “official” and “tickets” increases the likelihood of confusion because both words suggest that the disputed domain name is owned by or connected to the Complainant.

The Respondent has no rights or legitimate interest in respect of the disputed domain name because: it is not known as “Chelsea” and has no trade mark rights over that term in the United States of America or the United Kingdom; the Complainant has not authorised the Respondent to use its trade marks; the Respondent is not making a fair use of the disputed domain name, as the use of the word “official” indicates it is purposefully misleading Internet users. The Respondent is using the disputed domain name to sell tickets to the Complainant’s matches, and such use is not a bona fide offering of goods or services, because it trades on the goodwill of the Complainant.

The Complainant attempted to contact the Respondent via email, advising of the Complainant’s trade mark rights and requiring the Respondent to transfer the disputed domain name. No response was received to this correspondence.

By selling tickets for the Complainant’s matches in competition with the Complainant, the Respondent registered and is using the disputed domain name in bad faith. The Respondent was obviously aware of the Complainant at the time it registered the disputed domain name, and had the intention of promoting its own business, or disrupting the Complainant’s business.

By using the trade marks in the disputed domain name and throughout the website, together with the word “official”, the Respondent is intentionally attempting to attract Internet users to the website by creating a likelihood of confusion between the website and the Complainant.

The Respondent has not done anything (such as post a disclaimer on the website) to distinguish itself from the Complainant, and failed to respond to the Complainant’s cease and desist letters. This is further evidence of bad faith.

The Respondent has also engaged in a pattern of conduct of registering domain names that incorporate third party registered trade marks, and then using the website to sell tickets to sporting events and concerts. These domain names are linked to each other, and are part of the Respondent’s scheme to promote an online ticket as “official”.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Under paragraph 4(a) of the Policy, a complainant has the burden of proving the following:

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

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

(iii) That the disputed domain name has been registered and is being used in bad faith.

In this case, the Respondent failed to submit a Response. Under paragraph 14(b) of the Rules, the Panel is permitted to draw such inferences from the Respondent’s failure to comply with the Rules (e.g. by failing to file a response), as it considers appropriate.

A. Identical or Confusingly Similar

The Complainant has a registered trade mark in the United Kingdom for CHELSEA, which was registered on September 16, 2005 (UK registered trade mark no. 2381367). The Complainant has also registered a Community Trade Mark for CHELSEA (No. 3344561) which registered on October 3, 2007 and covers a wide range of goods and services including football club services.

The Complainant has established trade mark rights in the term CHELSEA. The next question is whether the disputed domain name <official-chelsea-tickets.com> is confusingly similar to the Complainant’s trade mark. In the Panel’s opinion, it is.

The disputed domain name includes the Complainant’s trade mark in its entirety. Incorporation of a complete trade mark in a domain name is generally sufficient to establish confusing similarity for the purposes of the Policy (see for example, Nokia Group v. Mr. Giannattasio Mario, WIPO Case No. D2002-0782).

The disputed domain name also includes the words “official” and “tickets”. The addition of generic terms are not ordinarily enough to distinguish a domain name from a registered trade mark, as they rarely change the overall impression of the name being connected to the owner of the trade mark (see for example Chippendales USA, LLC v. Latins Finest, WIPO Case No. D2003-0980).

Furthermore, football match tickets are clearly a relevant part of the Complainant’s business, and are therefore merely a description of goods or services provided by the Complainant. The word “official” has an everyday meaning which implies that the disputed domain name is owned by or connected with a genuine Chelsea entity, primarily the Complainant (see The Arsenal Football Club Public Limited Company v. Official Tickets Ltd, WIPO Case No. D2008-0842).

Incorporation of two generic words also means that an Internet user’s attention is more likely to be drawn to the less common word, being Chelsea. This is the most distinctive feature of the disputed domain name, and as it is the Complainant’s trade mark, it increases the likelihood of confusing similarity.

Chelsea is a geographic term. That does not, however, prevent a finding in favour of the Complainant in relation to paragraph 4(a)(i) of the Policy. See, for example, The Liverpool Football Club and Athletic Grounds Public Limited Company and the LiverpoolFC.TV Limited v. Andrew James Hetherington, WIPO Case No. D2002-0046; Sydney Markets Limited v. Nick Rakis trading as Shell Information Systems, WIPO Case No. D2001-0932 (and the other decisions cited therein).

The Panel finds that the first element has been met.

B. Rights or Legitimate Interests

The Complainant has put forward adequate evidence to suggest that the Respondent has no rights or legitimate interests in the disputed domain name.

In particular, the Complainant, as owner of the CHELSEA trade mark, has not authorised the Respondent to use its trade mark. The Respondent does not appear to be known by the name Chelsea, and does not appear to have any registered or pending trade mark rights over that term (at least not in the United States of America and the United Kingdom).

Most importantly, the Respondent is using the website for a commercial purpose, in a way that trades on the goodwill of the Complainant and its trade marks. The Respondent is using the disputed domain name to offer and sell match tickets, which clearly competes with the Complainant’s business. This cannot constitute a bona fide offering of goods or services under this element of the Policy, as the Respondent is attempting to divert the Complainant’s customers for its own commercial gain (see for example Trip.com, Inc. v. Daniel Deamone, WIPO Case No. D2001-1066).

The Complainant has made an adequate prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has failed to provide any evidence which changes the Complainant’s case. Therefore the second element has been met.

C. Registered and Used in Bad Faith

The Panel notes the similarities between this case, and the facts of The Arsenal Football Club Public Limited Company v. Official Tickets Ltd, WIPO Case No. D2008-0842. That case involved an almost identical domain name and website to the present case, although they were dedicated to the Arsenal Football Club rather than the Chelsea Football Club.

It is also noted that the Respondent operates similar sites for other football clubs in the English Premier League, such as “www.official-fulham-tickets.com”, and “www.official-manchester-tickets.com”. The website operating from the disputed domain name contains a direct link to these other websites.

Each of the “official ticket” websites operated by the Respondent, offers tickets for the relevant football team’s upcoming games, but also provides links to other goods and services (for example, concert tickets, other sporting event tickets and hotel accommodation). The websites also contain pictures, logos and/or colours unique to the particular team, which would cause Internet users to assume that it is in fact the “official” website.

In the Panel’s view, the Respondent has clearly engaged in a pattern of conduct which prevents trade mark owners from reflecting their trade mark in a corresponding domain name. This is evidence of bad faith under paragraph 4(b)(ii) of the Policy.

This Panel also finds that numerous statements set out in the Arsenal decision which relate to the Respondent’s bad faith, are equally applicable here. For example:

“The Complainant and its ARSENAL mark are well known around the world. The incorporation of the word “Arsenal” in the Domain Name, and the content of the Respondent’s Website, together leaves no room for doubt that the Respondent was well aware of the Complainant and its marks when the Domain Name was registered in October 2007.

The Respondent is clearly not some innocent reseller of tickets to Arsenal Football Club fixtures. Through the Respondent’s website it offers tickets to matches organized by other clubs, tickets to various concerts or other events, and a hotel reservation service, none of which has anything to do with the Arsenal Football Club. The consensus view of WIPO UDRP panels deciding cases under the Policy, is that the use of a third party trade mark owner’s mark in a domain name by an authorized reseller of that third party’s products, will only be regarded as a use in connection with a bona fide offering of the third party’s products, if certain conditions are satisfied. One of those conditions is that the respondent reseller must use the relevant website to sell only the trade marked products; otherwise, the reseller could be using the trade mark to bait Internet users and then switch them to other goods (see Oki Data Americas, Inc. v. ASD Inc., WIPO Case No. D2001-0903). Another “bona fide use” requirement for such a reseller is that the website must accurately disclose the reseller’s relationship with the trade mark owner. In this case, the Respondent’s Website offers (directly or indirectly) tickets to events run by numerous parties who have no connection with the Complainant even if it is offering genuine tickets to Arsenal fixtures, it does not meet the “only the trade mark owners products” aspect of the “authorized reseller” test articulated by the panel in Oki Data Americas Inc. v ASD Inc. Nor does the Respondent meet the other “limb” of the Oki Data Americas Inc. “bona fide reseller” test referred to above: the Respondent’s Website does not contain anything to advise visitors to the Respondent’s Website that the site is not owned by or connected with the Complainant.

The unauthorized use of the Complainant’s marks, and the frequent use of the word “official”, all point clearly to an intention to mislead Internet users into believing that the Respondent’s Website is somehow associated with or authorized by the Complainant.

The Panel is also satisfied on the evidence produced, that the Respondent is responsible for the registration of the domain names containing the names of other well known football clubs which were referred to by the Complainant. While each of these domain names appears to have been registered by Domains by Proxy Inc. (also the registered holder of the Domain Name until shortly before the Complaint was filed), all of them appear to be similar in style, and each lists the same contact telephone numbers in France, Italy, Germany, Spain, and the United Kingdom of Great Britain and Northern Ireland, as are listed on the Respondent’s Website. Each of these other domain names incorporates the word “official”, and each appears to be designed to mislead Internet browsers into believing that the linked websites are operated or authorized by the owners of the relevant football clubs. The Panel accepts the Complainant’s submission that these other domain names have been registered and used by the Respondent as part of a scheme designed to promote the Respondent’s online ticket store, by attracting browsers looking for ticket sites operated or authorized by the relevant football clubs.”

Accordingly, the Panel is also satisfied that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website, which is further evidence of bad faith under paragraph 4(b)(iv) of the Policy.

The Panel finds that the third element has been met.

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 name <official-chelsea-tickets.com> be transferred to the Complainant.


John Swinson
Sole Panelist

Dated: December 23, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-1574.html

 

На эту страницу сайта можно сделать ссылку:

 


 

На правах рекламы:

Произвольная ссылка:





Уважаемый посетитель!

Вы, кажется, используете блокировщик рекламы.

Пожалуйста, отключите его для корректной работы сайта.