Country Music Association, Inc. v. Caleb Kelley / Sun Tickets
Claim Number: FA1406001564007
Complainant is Country Music Association, Inc. (“Complainant”), represented by Kristen L. Fancher of Greenberg Traurig, LLP, Georgia, USA. Respondent is Caleb Kelley / Sun Tickets (“Respondent”), Tennessee, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cmatickets.com>, <cmaticketoffice.com>, and <cmaticket.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 11, 2014; the National Arbitration Forum received payment on June 11, 2014.
On June 13, 2014, Godaddy.Com, Llc, confirmed by e-mail to the National Arbitration Forum that the <cmatickets.com>, <cmaticketoffice.com>, and <cmaticket.com> domain names are registered with Godaddy.Com, Llc, Godaddy.Com, Llc and that Respondent is the current registrant of the names. Godaddy.Com, Llc, Godaddy.Com, Llc has verified that Respondent is bound by the Godaddy.Com, Llc, 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 June 16, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 7, 2014 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@cmatickets.com, postmaster@cmaticketoffice.com, postmaster@cmaticket.com. Also on June 16, 2014, 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 July 15, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 has used the CMA mark in connection with its annual country music awards ceremony for many decades. The CMA mark has been registered with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,561,168 registered Oct. 28, 2008, filed June 6, 2006). Respondent’s <cmatickets.com>, <cmaticketoffice.com>, and <cmaticket.com> domain names are all confusingly similar to Complainant’s CMA mark in that they add the descriptive term “tickets” (implying tickets to the CMA ceremony), the generic term “office,” and the generic top-level domain ("gTLD") “.com.”
Respondent has neither rights nor legitimate interests in the continued holding of these domain names. Respondent has never been commonly known by any of these disputed domain names, nor has Complainant authorized Respondent to operate using the CMA mark. Furthermore, the <cmatickets.com> and <cmaticketoffice.com> domain names’ websites are being used to promote ticket sales to CMA events (from which Complainant derives no benefit). This unauthorized resale of tickets is also comingled with ticket sales to competing events. The <cmaticket.com> domain name is merely parked on a generic GoDaddy.com, LLC hyperlink website.
Respondent registered the <cmatickets.com>, <cmaticketoffice.com>, and <cmaticket.com> domain names in bad faith. All of the domain names are being used to profit off a likelihood of confusion. The <cmatickets.com> and <cmaticketoffice.com> domain names are an attempt by Respondent to pass itself off as Complainant in hopes of profiting through ticket sales. The <cmaticket.com> domain name is being used solely to get Internet users searching for the CMA mark on the Internet to view and click on hyperlink advertisements. Further, Respondent registered these domain names actually knowing they infringed on Complainant’s CMA mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Country Music Association, Inc., has used the CMA mark in connection with its annual country music awards ceremony for many years. The CMA mark has been registered with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,561,168 registered Oct. 28, 2008, filed June 6, 2006).
Respondent, Caleb Kelley / Sun Tickets, registered the <cmatickets.com>, <cmaticketoffice.com>, and <cmaticket.com> domain names no earlier than August 16, 2007.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See 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.”).
Complainant has rights in the CMA mark under Policy ¶ 4(a)(i) through registration with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,561,168 registered Oct. 28, 2008, filed June 6, 2006). See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”). Respondent’s <cmatickets.com>, <cmaticketoffice.com>, and <cmaticket.com> domain names are all confusingly similar in that they add the descriptive term “tickets” (implying tickets to the CMA ceremony), the generic term “office,” and the gTLD “.com.”
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Complainant claims Respondent has never been commonly known by any of these disputed domain names, nor has Complainant authorized Respondent to operate using the CMA mark. The WHOIS information lists “Caleb Kelley” as the registrant of record for these domain names. The Panel finds that Respondent is not commonly known by the disputed domain names. See, e.g., LawyerLocate.ca Inc v. J Kirby Inwood / CanLaw, FA 1496334 (Nat. Arb. Forum June 20, 2013) (“Respondent’s name is J Kirby Inwood and his organization’s name is CanLaw. There is no evidence Respondent is known by the Domain Names nor by the names Lawyerlocate or Lawyerlocate.ca.”).
The <cmatickets.com> and <cmaticketoffice.com> domain names’ websites are being used to promote ticket sales to CMA events and competing events. Respondent’s unauthorized promotion of CMA events through these websites is neither bona fide under Policy ¶ 4(c)(i), nor legitimately noncommercial or fair use under Policy ¶ 4(c)(iii). See, e.g., Caterpillar Inc. v. Huth, FA 169056 (Nat. Arb. Forum Sept. 2, 2003) (“Respondent lacks rights in the disputed domain names because Respondent competes with Complainant by selling Complainant's used parts without a license from Complainant to do so.”).
The <cmaticket.com> domain name is parked on a generic GoDaddy.com, LLC hyperlink website. The Panel finds that the generic and competing hyperlinks viewable through the website create neither Policy ¶ 4(c)(ii) nor Policy ¶ 4(c)(iii) rights in the domain name.
Respondent is attempting to pass itself off as Complainant in hopes of profiting through ticket sales. The Panel finds that Respondent registered and uses the <cmatickets.com> and <cmaticketoffice.com> domain names in bad faith under Policy ¶ 4(b)(iv). See Fanuc Ltd v. Mach. Control Servs., FA 93667 (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by creating a likelihood of confusion with the complainant's mark by using a domain name identical to the complainant’s mark to sell the complainant’s products).
Respondent is using the <cmaticket.com> domain name for the purpose of promoting hyperlink advertisements. Therefore, the Panel finds that Respondent registered and is using the <cmaticket.com> domain name in bad faith under Policy ¶ 4(b)(iv). See, e.g., Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Further, Respondent had actual knowledge of Complainant’s mark and rights when it registered the disputed domain names. Thus, Respondent registered the disputed domain names in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
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 <cmatickets.com>, <cmaticketoffice.com>, and <cmaticket.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 29, 2014
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