Ticket Software LLC v. Zhichao Yang
Claim Number: FA1311001530835
Complainant is Ticket Software LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tichetliquidator.com>, <tickectliquidator.com>, <ticketlicquidator.com>, <ticketliquiditor.com>, <ticketliquidnator.com>, <ticketliquitator.com>, <ticketluiquidator.com>, and <tickitliquidator.com>, registered with Godaddy.Com, LLC.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 20, 2013; the National Arbitration Forum received payment on November 20, 2013.
On November 20, 2013, Godaddy.Com, LLC confirmed by e-mail to the National Arbitration Forum that the <tichetliquidator.com>, <tickectliquidator.com>, <ticketlicquidator.com>, <ticketliquiditor.com>, <ticketliquidnator.com>, <ticketliquitator.com>, <ticketluiquidator.com>, and <tickitliquidator.com> domain names are registered with Godaddy.Com, LLC and that Respondent is the current registrant of the names. Godaddy.Com, LLC has verified that Respondent is bound by the Godaddy.Com, LLC 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 November 22, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 12, 2013 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@tichetliquidator.com, postmaster@tickectliquidator.com, postmaster@ticketlicquidator.com, postmaster@ticketliquiditor.com, postmaster@ticketliquidnator.com, postmaster@ticketliquitator.com, postmaster@ticketluiquidator.com, and postmaster@tickitliquidator.com. Also on November 22, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 20, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Debrett G. Lyons as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant asserts trademark rights in TICKET LIQUIDATOR and alleges that the disputed domain names are confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant alleges that Respondent registered and used the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant owns United States Trademark Reg. No. 3,292,461 registered September 11, 2007 for the word mark TICKET LIQUIDATOR.
2. The disputed domain names were registered no earlier than June 2012.
3. The domain name resolves to .
4. There is no commercial agreement between the parties and Complainant has not authorized Respondent to use its trademarks or to register any domain name incorporating its trademarks.
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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.
Absent a response, Panel must decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules. Panel is entitled to draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. In that respect, Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory (see, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true; see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trademark rights. It is well established by former decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights. Since Complainant provides evidence of its trademark registration for TICKET LIQUIDATOR, Panel is satisfied that it has trademark rights (see State Farm Mut. Auto. Ins. Co. v. Periasami Malain, FA 705262 (Nat. Arb. Forum June 19, 2006) (“Complainant’s registrations with the United States Patent and Trademark Office of the trademark, STATE FARM, establishes its rights in the STATE FARM mark pursuant to Policy, paragraph 4(a)(i).”); see also Mothers Against Drunk Driving v. phix, FA 174052 (Nat. Arb. Forum Sept. 25, 2003) finding that the complainant’s registration of the MADD mark with the United States Patent and Trademark Office establishes the complainant’s rights in the mark for purposes of Policy paragraph 4(a)(i)).
Panel is also satisfied that the disputed domain names are confusingly similar to Complainant’s trademarks. For the purposes of comparison the gTLD, “.com”, can be ignored since it does nothing to distinguish the domain name from the trademarks in any significant way so as to avoid confusion (see Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The comparisons then reduce to the trademark TICKET LIQUIDATOR with the terms:
tichetliquidator
tickectliquidator
ticketlicquidator
ticketliquiditor
ticketliquidnator
ticketliquitator
ticketluiquidator, and
tickitliquidator.
Panel observes that, in purely quantitative terms, each disputed domain name differs from the trademark (i) by the addition or substitution of a single letter, and (ii) by omission of the space between the words TICKET and LIQUIDATOR.
In qualitative terms, Panel considers that an ordinary internet user would, in spite of those alterations, continue to perceive the terms as misspellings of the two words TICKET LIQUIDATOR, whether or not that user knew of Complainant’s trademark.
Panel finds that the alterations to the trademark are in each case insufficient to distinguish the domain name from the trademark so as to dispel confusing similarity (see, for example, Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) finding <belken.com> confusingly similar to complainant's BELKIN mark;
Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) finding that the elimination of spaces between terms do not establish distinctiveness under Policy ¶ 4(a)(i)).
Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in respect of each of the disputed domain names.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)
The publicly available WHOIS does not provide any prima facie evidence that Respondent might be commonly known by any of the disputed domain names. There is no evidence that Respondent has any trademark rights. There is no evidence that Complainant has authorized Respondent to use the trademarks and Complainant denies any such authorization.
Some of the domain names are in use; some are not. The evidence provided along with the Complaint shows that the websites resolving from the domain names is identical to Complainant’s website resolving from the <ticketliquidator.com> domain name. Complainant alleges that Respondent is not using the disputed domain names for a bona fide offering of goods or services because Respondent is in breach of Complainant’s “TicketLiquidator Affiliate Agreement”. Earlier decisions under this Policy support that allegation (see, for example, Sports Auth. Mich., Inc. v. Domhold Co., FA 135011 (Nat. Arb. Forum Jan. 9, 2003) finding that registering a domain name which differs by one letter from the domain used by a complainant for its commercial website, and using that domain name to redirect Internet consumers to the complainant’s website as a part of the complainant’s affiliates program, is not a bona fide offering of goods or services nor a noncommercial use of the domain name).
This Panel agrees with that thinking. Even if there is use, it is not a bona fide offering of goods or services by Respondent. Panel accordingly finds that Complainant has, for each domain name, established a prima facie case and so the onus shifts to Respondent to establish a legitimate interest in the domain names. In the absence of a Response, those cases are not rebutted and so Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Complainant must prove on the balance of probabilities both that the disputed domain names were registered in bad faith and that they are being used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(i) circumstances indicating that the respondent 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 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 trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; 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, respondent has intentionally attempted to attract, for commercial gain, internet users to 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 the site or location.’
Panel finds that there is no direct evidence to support an adverse finding according to any of those scenarios. Nonetheless, Complainant provides evidence that Respondent has habitually registered domain names which imitate third party trademarks and petitions Panel to draw the inference that Respondent has acted in bad faith at the time of registration of these disputed domain names.
Panel notes the provided evidence that Respondent has been subjected to at least three prior UDRP decisions which resulted in the transfer of numerous disputed domain names away from Respondent to various third-party complainants (AlliedBarton Security Services LLC v. Zhichao Yang (WIPO July 19, 2013); Time Warner Inc. v. Zhichao Yang, FA 1500968 (Nat. Arb. Forum June 28, 2013); Bloomberg Finance L.P. v. Zhichao Yang, FA 1496503 (Nat. Arb. Forum June 11, 2013). In the absence of any explanation why multiple permutations of Complainant’s trademark were registered and then used to point to Complainant’s official website, Panel accepts that allegation of bad faith registration of the domain names.
Panel has no particular interest in the terms and conditions of Complainant’s affiliate agreement since it is only required to find that, as a matter of first principle, it is bad faith use to employ obviously misspelt renditions of a complainant’s trademark to direct internet users to that complainant’s own website.
Panel finds, in each case, registration and use in bad faith. Complainant has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tichetliquidator.com>, <tickectliquidator.com>, <ticketlicquidator.com>, <ticketliquiditor.com>, <ticketliquidnator.com>, <ticketliquitator.com>, <ticketluiquidator.com>, and <tickitliquidator.com> domain names be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: January 3, 2014
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