Coachella Music Festival, LLC v. Mike Rush
Claim Number: FA1904001840644
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Mike Rush (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wearcoachella.com>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially and, to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 25, 2019; the Forum received payment on April 25, 2019.
On April 26, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <wearcoachella.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 26, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 16, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@wearcoachella.com. Also on April 26, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On May 21, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Coachella Music Festival, LLC, uses its marks in connection with its Coachella festival and related goods and services, including apparel. Complainant has exclusive rights in the COACHELLA mark based on registrations with the United States Patent and Trademarks Office (“USPTO”) (e.g., COACHELLA – Reg No. 3,196,119, registered Jan. 9, 2007). Respondent’s <wearcoachella.com> domain name is confusingly similar to Complainant’s COACHELLA mark as the domain name combines the COACHELLA mark with the word “wear” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <wearcoachella.com> domain name. Respondent is not commonly known as the disputed domain name, nor has Complainant authorized Respondent to use the COACHELLA mark. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to host a commercial parking page populated by pay per click advertisements.
Respondent registered and is using the <wearcoachella.com> domain name in bad faith, as indicated by the confusingly similar nature of the disputed domain name and Complainant’s mark, and Respondent’s use of Complainant’s mark for a commercial parking page.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Coachella Music Festival, LLC, uses its marks in connection with its Coachella festival and related goods and services, including apparel. Complainant has exclusive rights in the COACHELLA mark based on registrations with the USPTO (e.g., COACHELLA – Reg No. 3,196,119, registered Jan. 9, 2007). Respondent’s <wearcoachella.com> domain name is confusingly similar to Complainant’s COACHELLA mark.
Respondent registered the <wearcoachella.com> domain name on June 7, 2018.
Respondent has no rights or legitimate interests in the <wearcoachella.com> domain name. Respondent uses the disputed domain name to host a commercial parking page populated by pay per click advertisements.
Respondent registered and is using the <wearcoachella.com> domain name in bad faith.
Paragraph 15(a) of the Rules instructs this 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."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the COACHELLA mark under Policy ¶ 4(a)(i) based upon registration of the mark with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <wearcoachella.com> domain name is confusingly similar to Complainant’s COACHELLA mark as it combines the word “wear” with the COACHELLA mark and adds the gTLD “.com.”
Respondent has no rights or legitimate interests in the <wearcoachella.com> domain name. Complainant has not given Respondent permission to use the COACHELLA mark. The WHOIS information of record identifies the registrant of the disputed domain name as “Mike Rush.” Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015). A lack of authorization from the complainant to use its mark may also be evidence that the respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018). Therefore, Respondent is not commonly known by the <wearcoachella.com> domain name under Policy ¶ 4(c)(ii).
Respondent failed to use the <wearcoachella.com> domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to host a commercial parking page populated by pay per click advertisements. Using a confusingly similar domain name to commercially benefit from pay per click advertisements generally does not confer rights or legitimate interests in a domain name under Policy ¶¶ 4(c)(i) and/or (iii). See Zillow, Inc. v. Domain Admin / Whois Privacy Corp., FA 1784943 (Forum June 7, 2018) (“the <trulia.co> domain name resolves to a variety of pages, including real-estate-related advertising and to the website of a direct competitor of the Complainant in the online real estate field. Therefore, the Panel agrees with Complainant and finds that Respondent does not have rights or legitimate interests in the domain name per Policy ¶¶ 4(c)(i) or (iii).”). Complainant provides a screenshot of the resolving webpage associated with the domain name, which displays links such as “Womens Shoes” and “Merchandise.” Therefore, Respondent does not have rights or legitimate interests in the <wearcoachella.com> domain name under Policy ¶¶ 4(c)(i) and/or (iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wearcoachella.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: June 3, 2019
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