Coachella Music Festival, LLC v. Mark Bauman
Claim Number: FA1508001634054
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Mark Bauman (“Respondent”), represented by Gabriel W. Moore of East Village Law Group, California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coachellatickets.com>, registered with Wild West Domains, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Jonas Gulliksson as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 19, 2015; the Forum received payment on August 19, 2015.
On August 19, 2015, Wild West Domains, LLC confirmed by e-mail to the Forum that the <coachellatickets.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 August 21, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 10, 2015 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@coachellatickets.com. Also on August 21, 2015, 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.
A timely Response was not received by the required September 10, 2015 date. A deficient Response was, however, received and determined to be complete on September 11, 2015. In its discretion, the Panel may decide to consider the Response.
Complainant’s Additional Submission was received on September 15, 2015.
On September 22, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Jonas Gulliksson 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.
Preliminary Issue: Deficient Response
While a timely Response was required to be received by the FORUM by September 10, 2015, Respondent’s Response was not received until September 11, 2015. Thus the Forum does not consider the Response to be in compliance with ICANN Rule 5. The Panel, at its discretion, may choose whether to accept and consider this Response.
The Panel notes that the Response was filed only one day after the due date, and sees no reason to not accept and consider this Response. See Victoria’s Secret Stores Brand Mgmt., Inc. v. LaFond, FA 1362225 (Nat. Arb. Forum Jan. 7, 2011) (deciding that while the response was deficient, “the Panel has nonetheless decided to consider the deficient Response.”).
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
i. The Complainant has been using COACHELLA as a mark in commerce since 1999.
ii. The Complainant, has a valid trademark registration with the United States Patent and Trademark Office (“USPTO”) for the COACHELLA mark (e.g., Reg. No. 3,196,119, first use October 1999, filed on August 24, 2005, registered on January 9, 2007)
iii. The disputed domain name is confusingly similar to the mark in which the Complainant has rights.
i. The Respondent does not have any rights or legitimate interests in the disputed domain name.
i. The Respondent registered and has been using the disputed domain name in bad faith.
i. The Complainant does not own the COACHELLA mark.
ii. The disputed domain name is not confusingly similar to the COACHELLA mark.
i. The Respondent has rights or legitimate interests in the disputed domain name.
i. The Complainant has not provided evidence sufficient to support a finding of bad faith on Respondent’s part.
i. The Complainant’s mark cannot be attacked as merely geographically descriptive as it is established that a geographically descriptive mark can be a protectable trademark.
ii. Notwithstanding the Respondent’s allegations, the Complainant is the holder of the trademark registration for COACHELLA as a word mark.
iii. Respondent’s contention that the subject website is not displaying competing hyperlinks is contradicted by the fact that Concert Tickets Now,” “Las Vegas Show Tickets,” and “Sports & Concert Tickets” are not links for Complainant’s festival and therefore directly compete with Complainant.
iv. The Respondent has attempted to pass itself off as the Complainant in the past.
The Complainant is the holder of, inter alia, the trademark registration for COACHELLA (word mark), registered in the United States of America on January 9, 2007.
The disputed domain name was registered on March 12, 2004.
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.
The Panel notes that the <coachellatickets.com> domain name was created on March 12, 2004, and as such, predates both the registration and filing dates of Complainant’s COACHELLA trademark with the USPTO. However, the Panel also notes that Respondent, in its Response, admits to acquiring the domain name in 2011. UDRP panels have found the relevant date of a domain holder’s potential rights to be the date of acquisition of the domain name. See Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (determining that, even though the disputed domain name was registered earlier, the respondent’s rights in the disputed domain name began when the domain name was transferred to the respondent, which complainant’s rights in the mark predated).
The disputed domain name consists of the words “coachella” and “tickets”, with the addition of the generic Top-Level Domain (“gTLD”) “.com”. According to well-established consensus among UDRP panels, a gTLD is generally not distinguishing. The disputed domain name thus contains the Complainant’s COACHELLA trademark in its entirety. The addition of the word “tickets” is descriptive for a substantial part of the field of business in which the Complainant undisputedly operates and uses its trademark, namely arranging a music and arts festival. Thus, the addition of “tickets” is, in the Panel’s view, insufficient to avoid a finding of confusing similarity under the first element of the Policy.
In accordance with the findings above the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s COACHELLA trademark in the meaning of paragraph 4(a)(i) of the Policy and the first element of the Policy is, thus, fulfilled.
The Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to the Respondent to show that it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The Complainant has asserted that no permission has been granted to the Respondent to use the disputed domain name and that the Respondent has no rights of its own or legitimate interests to the disputed domain name.
Having considered the submissions of the Complainant as well as of the Respondent, the Panel finds that the Respondent is not connected with the Complainant or authorized to use the Complainant’s COACHELLA trademark in the disputed domain name.
Based on the evidence provided by both parties, the website linked to the disputed domain name seems to be a, so-called, parking page, featuring sponsored links regarding, inter alia, tickets for concerts, shows and sporting events. In the light thereof, the Panel finds that the website is being used for commercial purposes, and is not such a noncommercial site that might constitute a right or legitimate interest in the disputed domain name.
The Panel does not question the Respondent’s statement that there are, annually, a large amount of events held in the Coachella Valley, or that the combined words “coachellatickets” could refer to tickets to other events than the Coachella Valley Music and Arts Festival. Furthermore, the Respondent has alleged that it is developing the website to be a page that can guide locals to all of the events and attractions that the Coachella Valley has to offer. Notwithstanding these statements regarding the intended use of the disputed domain name, the Panel does not, in the light of the provided evidence regarding the contents of the subject website, find any indications that the Respondent is or has been making a legitimate or fair use of the disputed domain name.
Altogether, the Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name. The Respondent has not proved otherwise. The second element of the Policy is, thus, fulfilled.
The Respondent acquired the disputed domain name in 2011, which is four years later than the Complainant’s trademark registration of COACHELLA, and twelve years after the first usage of COACHELLA as a mark for the Complainant’s music and arts festival. According to the evidence provided, the subject website has recently been used as a parking page, containing sponsored links for concerts, shows and sporting events.
This usage of a domain name, resolving to a parked website displaying sponsored links to websites unrelated to the Complainant, suggests that the Respondent has intentionally attempted to attract internet users for its own commercial gain through its registration and use of the confusingly similar domain name. See Google Inc. v. Ravi Mani, FA 1330290 (Nat. Arb. Forum July 21, 2010) and Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum July 11, 2006).
Adding the Complainant’s evidence showing that the subject website earlier contained information specifically about the Coachella Valley Music and Arts Festival, encouraging internet users to buy tickets to the subject festival by sending an e-mail to “support@coachellatickets.com”, and considering the Complainant’s statements that the website at the time was designed to look like it was operated by the Complainant, the Panel finds that the Respondent has been taking advantage of the confusing similarity between the disputed domain name and the Complainant’s COACHELLA mark in bad faith pursuant to the Policy. Therefore, the Panel finds that the third element of the Policy is fulfilled.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coachellatickets.com> domain name be TRANSFERRED from Respondent to Complainant.
Jonas Gulliksson, Panelist
Dated: October 6, 2015
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page