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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Fulham Football Club (1987) Limited, Tottenham Hostpur Public Limited, West Ham United Football Club PLC, Manchester United Limited, The Liverpool Football Club And Athletic Grounds Limited v. Domains by Proxy, Inc./ Official Tickets Ltd

Case No. D2009-0331

1. The Parties

The Complainants are Fulham Football Club (1987) Limited, Tottenham Hostpur Public Limited, West Ham United Football Club PLC, Manchester United Limited, The Liverpool Football Club And Athletic Grounds Limited, of United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented by SafeNames Ltd., United Kingdom.

The Respondent is Domains by Proxy, Inc./ Official Tickets Ltd., of United States of America.

2. The Domain Names and Registrar

The Disputed Domain Names <official-fulham-tickets.com>, <official-liverpool-tickets.com>, <official-manchester-tickets.com>, <official-tottenham-tickets.com>, <official-westham-tickets.com> are registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 12, 2009. On March 13, 2009, the Center transmitted by email to GoDaddy.com, Inc a request for registrar verification in connection with the Disputed Domain Names. On March 16, 2009, GoDaddy.com, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainants on March 18, 2009 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainants filed two amendments to the Complaint on March 18, 2009. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), 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"). The Center made a prima facie assessment of the Complaint and determined the Complainants had pleaded grounds which might justify entertaining the Complaint in the consolidated form that it was filed.

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 March 23, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was April 12, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent`s default on April 14, 2009.

The Center appointed Alistair Payne as the sole panelist in this matter on April 29, 2009. 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 Complainants are Fulham Football Club (1987) Limited, Tottenham Hotspur Public Limited, West Ham United Football Club PLC, Manchester United Limited, and Liverpool Football Club and Athletic Grounds Limited.

The Complainants are all professional football clubs playing in the English Premier League. The Complainants have become widely known throughout the world through advertising and media coverage.

The Complainants are the owners of a number of trade marks registered in the United Kingdom, the European Union and the United States of America including, but not limited to FULHAM FC, TOTTENHAM HOTSPUR, WEST HAM UNITED, MANCHESTER UNITED, and LIVERPOOL FOOTBALL CLUB.

The Complainants own domain names which incorporate the Complainants` registered trade marks, these include <fulhamfc.com>, <tottenhamhotspur.com>, <westhamunited.co.uk>, <manchesterunited .com> and <liverpoolfc.com>.

The Respondent is Domains by Proxy, Inc. / Official Tickets Ltd. of the United States of America. The Disputed Domain Names were registered by Official Tickets Ltd. on October 24, 2007. The Disputed Domain Names resolve to web sites selling tickets to the Complainants` football matches and other events. The Respondent is not affiliated with the Complainants nor is it in any way endorsed by the Complainants as an authorised distributor of tickets to the Complainants` football matches.

The Disputed Domain Names are: <official-westham-tickets.com>, <official-tottenham-tickets.com>, <official-fulham-tickets.com>, <official-manchester-tickets.com> and <official-liverpool-tickets.com>.

5. Preliminary Procedural Issue: Consolidation of Complaints

This case concerns a number of Premier League football clubs who are attempting to bring a consolidated complaint against the Respondent. The preliminary issue is therefore whether the Complainants are entitled to bring a consolidated complaint against the Respondent, or whether it is necessary for the Complainants to bring individual complaints.

A. Principles of Consolidation

As far as the Panel is aware, little (if any) substantive consideration has previously been given by a UDRP panel concerning the circumstances in which it might be appropriate to permit a consolidated complaint involving multiple complainants and multiple domain names against a single domain name registrant. However a previous panel has considered the issue in considerable detail, but under the auDRP which in many respects mirrors the UDRP.

In National Dial A Word Registry Pty Ltd and others v. 1300 Directory Pty Ltd, WIPO Case No. DAU2008-0021 ("the National Dial A Word case"), the panel undertook an in-depth analysis of the applicable terms of the auDRP and of the principles that should apply in determining whether consolidation should be permitted. Subject to the comments made below and to any substantive differences in the UDRP, this Panel generally adopts the principles set out in that decision.

Relevant Provisions of the UDRP

The first point to note is that both the UDRP Policy and Rules make express provision permitting the consolidation of multiple domain names in a complaint.

Paragraph 3(c) of the Rules, provides that a complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder. Paragraph 4(f) of the Policy provides that where there are multiple disputes between a complainant and respondent, either party may petition to consolidate the disputes before a single administrative panel. Under paragraph 4(f) of the Policy the consolidation petition is made to the first administrative panel appointed to hear a pending dispute between the parties, this administrative panel may consolidate before it any or all such disputes in its sole discretion, provided the disputes are governed by the Policy. Under paragraph 10(e) of the Rules it is for the panel to decide a request by a party to consolidate multiple domain name disputes in accordance with the Policy and Rules.

Neither the Policy nor the Rules expressly provides for the consolidation of multiple complainants in a single complaint. While both the Policy and Rules use the term "complainant" throughout, the Policy and Rules do not expressly preclude multiple legal persons from falling within the term "complainant".

The question is therefore, as a matter of principle, whether a complainant must be a single legal person or entity or instead can consist of multiple legal persons or entities, and, if this is the case, under what conditions.

General Principles Applicable to Consolidation Under the UDRP

In the National Dial A Word case (see supra), the panel held that the consolidation of multiple complaints in a single complaint should be permitted if the complainants:

(i) have a common grievance against the respondent; and

(ii) it would be equitable and procedurally efficient to permit the consolidation of complaints.

With regard to the first limb of the test, to establish a common grievance against the respondent the panel in the National Dial A Word case held that multiple complainants must;

(i) have a common legal interest in the trade mark rights on which the complaint is based; or

(ii) be the target of common conduct by the respondent which has clearly affected their individual legal interests in a similar fashion.

Instances where multiple complainants may establish a common legal interest would include where:

(i) the multiple complainants have a shared interest in a trade mark, such as may exist between a licensor and a licensee; or

(ii) the multiple complainants form part of a single entity such as where individual companies are part of a larger corporate group or joint venture; or

(iii) the multiple complainants are members of an established association or league (such as a sporting association) in which individual members have rights authorized to be enforced by the association, both the association and the members should have standing to appear as multiple complainants in a consolidated complaint against a single respondent.

If multiple complainants cannot establish a common legal interest sufficient to justify their consolidation in a single complaint, to satisfy the "common grievance" limb of the test the complainants must establish that the respondent has engaged in common conduct that has affected their individual rights in a similar fashion. Such common conduct may be found to exist:

(i) where the rights relied on and the disputed domain names in question involve readily identifiable commonalities; or

(ii) where there is a clear pattern of registration and use of all the disputed domain names in question.

If the multiple complainants establish that a common grievance exists against the respondent then the panelist considered that the second limb of the test should be addressed: would it be equitable and procedurally efficient to permit consolidation of the complainants?

In determining if the second limb of the test is satisfied the panel in the National Dial A Word case took into account the following factors:

(i) whether there is any apparent reason why it would not be equitable to permit consolidation of the complainants;

(ii) the extent to which the complainants` substantive arguments made under each of the three elements of the Policy appear to be common to the disputed domain names;

(iii) whether all complainants are represented by a single authorized representative for the purpose of the proceedings;

(iv) whether the complainants clearly stipulate each disputed domain name, the individual complainant making a claim thereto, the right or rights relied upon by that complainant, the remedy sought in respect of the disputed domain name, and the registrar with whom the disputed domain name is registered;

(v) whether the case involves a relatively small number of domain names;

(vi) that relevant filings, including any annexes, would not appear to be unreasonably voluminous;

(vii) whether there is an applicable fee schedule covering the complaint as filed.

In broad terms this Panel considers that the test outlined above is appropriate and balanced and is consistent with the aim of the UDRP to combat cybersquatting in as efficient and cost effective a manner as is fairly possible. However the test must be applied judiciously and depending upon the circumstances of particular cases may require the exercise of a panel`s discretion in adapting it as appropriate.

The panel in the National Dial a Word case also considered that the administrative service provider should determine on a prima facie basis whether the multiple complainants have pleaded grounds which might justify entertaining the complaint in consolidated form. If accepted, the complaint would then be submitted to an administrative panel for final determination as to whether the complaint should or should not be accepted in consolidated form, and if so, for substantive determination by the panel of the merits of the claim. The panel in that case also suggested that the respondent should have a fair opportunity to reply to the complainants` petition regarding consolidation.

While this Panel agrees that it is practical and sensible for the administrative service provider to play a gatekeeper role in prima facie determining whether a complaint satisfies the criteria for admission, the ultimate determination remains the decision of the duly appointed panel. Accordingly, it may not necessarily be appropriate (or indeed desirable) for the administrative service provider to separately request submissions from the respondent as to the validity or not of the multiple complainants as this could place the administrative service provider in a defacto decision maker`s role1.

The role of the administrative service provider is to act as a gatekeeper by clearly rejecting complaints which do not fulfill the requisite criteria. Once a complaint is admitted on a prima facie basis the respondent will have its opportunity to make submissions as to validity of the complaint together with its substantive response. The panel will then be in a position to determine the procedural issues based on both parties` submissions and the panel may of course request further statements or materials from either party if found to be necessary. There seems to this Panel to be no compelling reason to impose an additional step into the process which would require a provider to seek comments from the respondent, or to place the onus of review and determination of competing submissions upon the administrative service provider.

The Panel notes that where multiple complainants do not satisfy the test set out in the National Dial A Word Registry case, they should not be prevented from subsequently filing complaints in their individual capacities against the respondent and in these circumstances the individual complaints should not constitute re-filed complaints.

B. Application of the Principles of Consolidation to this Complaint

Do the Complainants in this case have a common grievance against the Respondent sufficient to satisfy the first limb of the test set out in the National Dial A Word case?

The Complainants in this case do not on the provided record appear to have a common legal interest that has been affected by the Respondent`s conduct.

The Complainants are all currently members of the English Premier League, a sporting association in which it is possible the Complainants have vested certain individual rights. However, the Premier League is not a complainant in this case seeking to enforce any rights. Further, each Complainant owns, and is seeking to protect their trade mark rights individually, not jointly with each other. Thus, it seems clear from the Complaint that there is no legal interest affected by the Respondent`s conduct that is common to the Complainants.

However the Complainants have established that the Respondent has engaged in common conduct which has affected their legal rights in a similar fashion. Indications of such common conduct on the part of the Respondent include:

(i) the fact that the Disputed Domain Names share readily identifiable commonalities. When each of the Complainants` trade marks are disregarded for the purposes of comparison, the Disputed Domain Names contain the identical generic terms "official" and "tickets";

(ii) the fact that the Disputed Domain Names have all apparently been registered on the same day points to a clear pattern of registration;

(iii) the fact that the Disputed Domain Names apparently all resolve to an identical web site selling unauthorised Premier League tickets points to a clear pattern of use of all the Disputed Domain Names for the same purpose.

The second limb of the test set out in the National Dial A Word case is also satisfied. In the Panel`s view it is equitable and procedurally efficient to permit consolidation of the Complainants` complaints because:

(i) although each of the Complainants operates under its own trade mark and each of the Disputed Domain Names incorporates elements of each of the Complainants` differing trade marks, in effect the Respondent is using the Complainants` trade marks for the same purposes. Therefore, the commencement of separate proceedings by each of the Complainants in relation to an otherwise common complaint would be inefficient and unnecessary under the Policy;

(ii) the Complainants` substantive arguments made under each of the three elements of the Policy are common to the Disputed Domain Names;

(iii) all the Complainants are represented by a single authorized representative for the purposes of the proceedings;

(iv) the Complainants have clearly stipulated each Disputed Domain Name, the individual Complainant making a claim thereto, the rights relied upon by that Complainant, and the registrar with whom the Domain Name is registered. Any transfer, if found to be justified and ordered by the Panel, will be to the individual Complainant holding the corresponding claimed trade mark.

(v) the case involves a relatively small number of Domain Names;

(vi) relevant filings, including annexes, are not unreasonably voluminous;

(vii) there is an applicable fee schedule covering the Complaint as filed.

Accordingly the Panel determines that this Complaint consists of multiple Complainants that should, for the reasons discussed above, be permitted to have their complaints consolidated into a single Complaint for the purpose of the present proceedings under the Policy. The Respondent has not chosen to file a response and consequently there are no submissions to be taken into account on the procedural issues. Overall this is clearly a case fitting within the "common conduct" category in which it would be equitable and fair to permit consolidation.

6. Parties` Contentions

A. Complainants

The Complainants contend that they have registered trade marks in their respective names.

The Complainants contend that the Disputed Domain Names are identical or confusingly similar to the trade marks or service marks in which the Complainants have rights. The Complainants support this contention by reference to the fact, for example, the Domain Names <official-westham-tickets.com> and <official-tottenham-tickets.com> are similar to the respective Complainant`s registered trade marks WEST HAM and TOTTENHAM.

The Complainants argue that the addition of the generic terms "official" and "tickets" is insufficient to distinguish the Disputed Domain Names from their registered trade marks.

The Complainants contend that the Respondent has no legitimate interests in respect of the Domain Names. The Complainants submit that the Respondent is an unauthorised distributor and retailer of Premier League Tickets and that the Disputed Domain Names currently resolve to football ticket web sites.

Further, it is contended by the Complainants that the utilisation of the fame and notoriety of the Complainants` respective trade marks and branding to promote and sell football team tickets and other sporting events and concerts is not a bona fide offering of goods and services within the scope of paragraph 4(c)(i) of the Policy.

The Complainants submit that the Respondent is selling unauthorised tickets, and furthermore that tickets purchased through the web sites in question cannot be verified as being legitimate. The Complainants submit that the generation of revenue from the utilisation of the Complainants` brand and mark in this manner does not constitute a legitimate non-commercial use of the Disputed Domain Names in accordance with paragraph 4(c)(iii) of the Policy.

For these reasons, the Complainant contends that the Respondent does not fulfil the requirements of paragraph 4(a)(ii) of the Policy.

The Complainants contend that the Disputed Domain Names were registered and are being used in bad faith. In support of this contention, the Complainants make reference to the fact that the Respondent was aware of the Complainants` legitimate web sites when they registered the Disputed Domain Names.

It is argued by the Complainants that the Respondent purposefully registered the Disputed Domain Names to disrupt the Complainants` businesses and subsequently to promote their own business by selling tickets to matches involving the Complainant clubs without authorisation to do so. This, the Complainant submits, constitutes behaviour in accordance with paragraph 4(b)(iii) of the Policy.

The Complainants further submit that the Respondent`s use of the Complainants` registered trade marks, both in the Disputed Domain Names and throughout the web sites to which the Disputed Domain Names resolve, combined with the use of the Complainants` team colours, fonts, images, logos and the consistent reference to the term "official", evidences the intentional attempt on the part of the Respondent to attract Internet users to their web site by creating a likelihood of confusion with the Complainants` trade marks.

The Complainants submit that the Respondent does not satisfy the "bona fide reseller" test articulated by the panel in Oki Data Americas, Inc. v. ASD Inc., WIPO Case No. D2001-0903.

The Complainants submit that the Respondent is purposefully using a WhoIs privacy service to avoid detection and continue generating revenue without being identified. The Complainants submit that the Respondent in this action is the same as the Respondent in The Arsenal Football Club Public Limited Company v. Official Tickets Ltd, WIPO Case No. D2008-0842 and that the Respondent has utilised false and inaccurate registration information contrary to paragraph 2(a) of the Policy.

The Complainants further submit that the Respondent purposefully registered the Disputed Domain Names to prevent the Complainants from reflecting their trade marks and has engaged in a pattern of such conduct in accordance with paragraph 4(b)(ii) of the Policy. The Complainants support this contention by reference to the fact the Respondent has registered a series of domain names that wholly incorporate registered trade marks of which they are not the owner or licensee and that the Respondents use these sites to sell tickets to sporting events and concerts which cannot be verified as authentic or legitimate.

The Complainants request in accordance with paragraph 4(i) of the Policy, for the reasons summarized above and more particularly set out in the Complainant, that the Disputed Domain Names <official-westham-ticktes.com>, <official-tottenham-tickets.com>, <official-fulham-tickets.com>, <official-manchester-tickets.com> and <official-liverpool-tickets.com> be transferred to the Complainants.

B. Respondent

The Respondent did not reply to the Complainants` contentions.

7. Discussion and Findings

A. UDRP Elements

If the Complainants are to succeed, they must prove each of the three elements referred to in paragraph 4(a) of the Policy, namely that:

(i) the Disputed Domain Names are identical or confusingly similar to trade marks in which the Complainants have rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and

(iii) the Disputed Domain Names have been registered and are being used in bad faith.

Paragraph 15(a) of the Rules requires the Panel to:

"decide a Complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any Rules and principles of law that it deems applicable".

If a Respondent does not submit a response, paragraph 5(e) of the Rules requires the Panel to "decide the dispute based on the Complaint". Under paragraph 14(b) of the Rules, the Panel may draw such inferences from a Respondent`s failure to comply with the Rules (by failing to file a response), as the Panel considers appropriate.

The Panel will proceed to establish whether the Complainants have discharged the burden of proof in respect of the three elements referred to in paragraph 4(a) of the Policy.

B. Identical or Confusingly Similar

It is necessary to divide the Disputed Domain Names into two categories for the purposes of addressing whether paragraph 4(a)(i) of the Policy is satisfied.

The first category consists of the Disputed Domain Names <official-westham-tickets.com> and <official-tottenham-tickets.com>. The Complainants, West Ham United Football Club PLC and Tottenham Hotspur Public Limited, have respectively established that they have registered trade mark rights in WEST HAM and TOTTENHAM.

The Disputed Domain Names are not identical to the Complainants` respective trade marks. The Panel is however satisfied that the Disputed Domain Names <official-westham-tickets.com> and <official-tottenham-tickets.com> are confusingly similar to the Complainants` respective registered trade marks.

The basis for finding that the Disputed Domain Names are confusingly similar is that they incorporate the Complainants` respective trade marks WEST HAM and TOTTENHAM in their entirety. The distinctive elements of the Disputed Domain Names are the names "West Ham" and "Tottenham". As the Panel held in The Arsenal Football Club Public Limited Liability Company v. Official Tickets Ltd, WIPO Case No. D2008-0842, the words "official", and "tickets" are generic, and do not reduce the confusing similarity between the Disputed Domain Name and the Complainant`s mark. Further, in this case the use of the words "official" and "tickets" if anything increases the likelihood of confusion, as both words are suggestive of one of the Complainants` main business activities, namely the selling of "official tickets" to their respective matches.

The second category of Disputed Domain Names consists of <official-fulham-tickets.com>, <official-manchester-tickets.com> and <official-liverpool-tickets.com>. They can be distinguished from the first category on the basis that the Complainants` trade marks are geographic terms and by the fact the Disputed Domain Names do not include the whole of the Complainants` respective registered trade marks.

The Complainants have respectively registered trade mark rights in FULHAM FC, LIVERPOOL FC and MANCHESTER UNITED. There is also considerable evidence of the respective Complainants` unregistered trade mark rights in the FULHAM, LIVERPOOL and MANCHESTER UNITED trade names or trade marks which are so well known and by such a large section of local and international communities, that when used in a football and sporting context, they have developed a secondary meaning which distinguishes their respective owners from the ordinary geographical reference of "Fulham", "Liverpool" or "Manchester".

The Disputed Domain Names in this category are not identical to the Complainants` trade marks. However on balance the Panel considers that the Disputed Domain Names in this category are confusingly similar to the respective parties` registered or unregistered marks. This is so in particular because of the unusually high degree of renown attaching to each of the marks and the likelihood that use of the respective Disputed Domain Names would lead people to mistakenly believe that these Disputed Domain Names are authorised by or associated with the respective Complainants. In the Panel`s view this is so even in the case of the <official-manchester-tickets.com> Disputed Domain Name which even though it does not incorporate the whole MANCHESTER UNITED mark or name would still be likely to be perceived by people as referring to tickets provided by this particular football club, in circumstances that it is one of the most well known football clubs in the world.

For the foregoing reasons the Panel concludes that the Disputed Domain Names in question are confusingly similar to the Complainants` respective trade marks for the purposes of paragraph 4(a)(i) of the Policy.

C. Rights or Legitimate Interests

A Complainant is required to make out an initial prima facie case that the Respondent lacks rights or legitimate interests. Once such prima facie case is made, the Respondent carries the burden of demonstrating rights or legitimate interests in the Disputed Domain Name. If the Respondent fails to do so, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.

Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a Respondent to demonstrate that it has rights to, or legitimate interests in, a Disputed Domain Name, for the purposes of paragraph 4(a)(ii) of the Policy. Those circumstances are:

(i) Before any notice to the Respondent of the dispute, use by the Respondent of, or demonstrable preparations to use, the Disputed Domain Name or a name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services; or

(ii) Where the Respondent as an individual, business, or other organization, has been commonly known by the Disputed Domain Name, even if the Respondent has acquired no trade mark or service mark rights; or

(iii) Where the Respondent is making a legitimate non-commercial use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.

In this case the Complainants have clearly made out a prima facie case that the Respondent has no rights or legitimate interests:

Paragraph 4(c)(i) of the Policy is apparently not satisfied here as, for example, the Complainants have not authorized the Respondent to use their trade marks or trade name rights whether in a Domain Name or otherwise.

There is no evidence that the Respondent is a legitimate or authorised reseller of tickets. In determining whether the Disputed Domain Names have been used in connection with a bona fide offering of goods or services, the criteria set out in Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 are of use.

The Oki Data panel observed the following circumstances must be present for an offering of goods or services to be bona fide for the purposes of paragraph 4(c)(i) of the Policy:

(i) the respondent must actually be offering the complainant`s goods or services at issue;

(ii) the respondent must use the site to sell only the trade marked products; otherwise, the respondent could be using the trade mark to bait other internet users and then switch them to other goods;

(iii) the web site must accurately disclose the respondent`s relationship with trade mark owner;

(iv) the respondent must not be allowed to corner the market in domain names that reflect that mark.

In the present case it is evident from reviewing the content of the Respondent`s web sites that the second of the above conditions is not met as the web sites are being used to sell tickets to matches organized by other clubs and tickets to various other concerts and events. The third condition is also not met as the Disputed Domain Names improperly suggest that the reflected web sites are official web sites authorised to sell tickets. The consistent use of the word "official" throughout the Respondent`s web sites is further likely to mislead Internet users, causing them to mistakenly believe that they are purchasing official tickets.

There is evidence that the Respondent has, in circumstances similar to this case, registered a series of domain names that wholly incorporate the registered trade marks of well known European football clubs and major sporting events. These include: JUVENTUS, WIMBLEDON, S.S. LAZIO, REAL MADRID, CHAMPIONS LEAGUE, SEVILLA FOOTBALL CLUB, SIX NATIONS, UEFA CUP, A.S ROMA, and THE OLYMPICS. Each of these Disputed Domain Names incorporates the words "official" and "tickets", and each appears to be designed to mislead Internet users into believing that the web sites to which the Domain Names resolve are operated or authorised by the owners of the relevant trade mark rights. The web sites to which these Domain Names resolve are similarly used to sell unofficial tickets to sporting events and concerts and would appear to form part of a scheme by the Respondent designed to promote the Respondents` online ticket store. The Panel finds that such a pattern of registration of domain names for the purposes of misleading Internet users in this way is not consistent with the bona fide offering of goods or services under paragraph 4(c)(i) of the Policy.

Paragraph 4(c)(ii) of the Policy is not satisfied as there is nothing to suggest that the Respondent might be commonly known by the Disputed Domain Names. It is instructive in this regard that the Respondent only registered the Disputed Domain Names in October 2007, when the Complainants trade marks were already extremely well known.

Neither is there any evidence that the Respondent has been making a non-commercial or fair use of the Disputed Domain Names, without intent for commercial gain.

The Respondent has not filed a Response to the Complaint, none of the grounds set out in paragraph 4(c) of the Policy are made out based on the evidence put before the Panel and all the circumstances point to the Respondent using the Disputed Domain Names to channel Internet traffic to its website where it sells unauthorised tickets to the Complainants football matches.

In all the circumstances the Panel therefore finds the Respondent has no rights or legitimate interests in respect of the Disputed Domain Names and as such the Complainant has satisfied paragraph 4(a)(ii) of the Policy.

D. Registered and Used in Bad Faith

The Policy requires a complainant to prove both registration and use in bad faith.

Paragraph 4(b) of the Policy lists a number of circumstances which, without limitation, are deemed to be evidence of the registration and used of a domain name in bad faith. Those circumstances are:

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

(ii) the respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

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

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

The Panel accepts the Complainants` contention that the Respondent is unauthorised to sell tickets to their football matches and is the Complainants` competitor in the context of ticket sales. As the Panel has already noted, the Respondent has engaged in a pattern of registration of domain names incorporating trade marks in which the Respondent has no rights, combined with the generic words "official" and "tickets". The Panel accepts the Complainants` submission that, as in this case, these other domain names have been registered and used by the Respondent as a part of a scheme designed to promote the Respondent`s online ticket store, by misleading Internet users seeking to purchase the official tickets of the relevant football club or sporting organizations. For these reasons, the Panel finds that this pattern of conduct is indicative of bad faith on the part of the Respondent.

For the purposes of paragraph 4(b)(iv) of the Policy the Complainants contend that the Respondent has used the Disputed Domain Names in an attempt to attract, for commercial gain, Internet users to the Respondent`s websites by creating a likelihood of confusion with the Complainant`s mark as to source, sponsorship, affiliation or endorsement.

As noted, the Complainants have developed substantial reputations in their respective trade marks. The Panel cannot objectively reason why the Respondent would use the Complainants` respective trade marks in the Disputed Domain Names in addition to the terms "official" and "tickets" for any other reason save as to create a likelihood of confusion amongst Internet users with the Complainants` trade marks. The fact that the Disputed Domain Names resolve to web sites that contain similar colours, fonts, images and logos to those of the Complainants` registered trade marks and contain the term "official" throughout while seeking to generate revenue through the sale of tickets to the Complainants football matches is likely to cause further confusion amongst Internet users with the Complainants` trade marks. In all the circumstances it appears to the Panel that the Disputed Domain Names and the websites to which they resolve were intended to confuse people as to the source, sponsorship, affiliation or endorsement of the Respondent`s website.

The Panel finds that the Complainant has satisfied the requirements of paragraph 4(b)(iv) of the Policy and that accordingly the Disputed Domain Names were registered and used in bad faith under paragraph 4(a)(iii) of the Policy.

8. 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 Disputed Domain Names be transferred to the Complainants` respectively on the following basis:

1. <official-fulham-tickets.com> to Fulham Football Club (1987) Limited;

2. <official-liverpool-tickets.com> to The Liverpool Football Club And Athletic Grounds Limited;

3. <official-manchester-tickets.com>to Manchester United Limited;

4. <official-tottenham-tickets.com> to Tottenham Hostpur Public Limited;

5. <official-westham-tickets.com> to West Ham United Football Club PLC.


Alistair Payne
Sole Panelist

Dated: May 12, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2009/d2009-0331.html

 

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1 The Panel notes that in other circumstances it has been found to be appropriate for a provider to conduct a prima facie assessment of a filed complaint, for example in cases of re-filed complaints, a provider would not typically be required to seek comment from the respondents, see, e.g. Creo Products Inc. v. Website In Development, WIPO Case No. D2000-1490.

 

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