Coachella Music Festival, LLC v. Iskander Ashirkaev
Claim Number: FA1603001664318
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Iskander Ashirkaev (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hmcoachella.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 Forum electronically on March 7, 2016; the Forum received payment on March 7, 2016.
On March 8, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <hmcoachella.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 March 9, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 29, 2016 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@hmcoachella.com. Also on March 9, 2016, 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 received and determined to be complete on March 10, 2016.
On March 14, 2016, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the COACHELLA mark in connection with its annual Coachella Music Festival. Complainant has registered the COACHELLA mark with the United States Patent and Trademark Office (“USTPO”) (e.g., Reg. No. 3,196,119, registered January 9, 2007). The <hmcoachella.com> domain name is confusingly similar to the COACHELLA trademark because the domain name contains the entire mark and makes only the minor alteration of adding the letters “hm,” as well as the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests. Respondent is not commonly known as the disputed domain name, nor is Respondent in possession of licensing rights issued by Complainant. Further, Respondent is not making a bona fide offering of goods or services, or a legitimate noncommercial or fair use because Respondent is reselling tickets to Complainant’s music festival.
Respondent has registered and used the <hmcoachella.com> domain name in bad faith. Respondent is reselling tickets to Complainant music festival which creates a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of its website to commercially gain under Policy ¶ 4(b)(iv). Lastly, it is inconceivable that Respondent registered and used the <hmcoachella.com> domain name without actual and/or constructive knowledge of the COACHELLA mark and Complainant’s rights in the mark, evincing bad faith under a non-exclusivity analysis of Policy ¶ 4(a)(iii).
B. Respondent
Complainant has not shown any interest in the domain name prior to Respondent’s registering it, and has not attempted to contact Respondent to resolve this outside of the present proceedings.
Complainant, Coachella Music Festival, LLC, uses the COACHELLA mark in connection with its annual Coachella Music Festival. Complainant has rights in the COACHELLA mark through registration with the USTPO (e.g., Reg. No. 3,196,119, registered January 9, 2007). The <hmcoachella.com> domain name is confusingly similar to the COACHELLA trademark.
Respondent, Iskander Ashirkaev, registered the disputed domain name on February 9, 2016. Respondent is reselling tickets to Complainant’s music festival. Respondent has no rights or legitimate interests in the<hmcoachella.com> domain name.
Respondent has registered and used the <hmcoachella.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.
Complainant has rights in the COACHELLA mark under Policy ¶ 4(a)(i) through registration with the USPTO even where Respondent operates in a different country. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <hmcoachella.com> domain name is confusingly similar to the COACHELLA trademark. The domain name contains the entire mark while adding the letters “hm” (H&M is reportedly a sponsor of the Coachella Music Festival), as well as the gTLD “.com.”
Respondent has no rights or legitimate interest in the <hmcoachella.com> domain name. Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). The WHOIS information for domain name lists “Iskander Ashirkaev” as registrant. Complainant has not authorized Respondent to use its COACHELLA mark. Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Respondent is using the disputed domain to resell tickets to Complainant’s music festival in contravention of Complainant’s “no ticket resale” policy. Using a disputed domain name to sell Complainant’s goods without permission or a license from Complainant is not a bona fide offering of goods or services. Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors). Furthermore, Respondent’s ticket sales compete with those of Complainant. See Alcon, Inc. v. ARanked, FA 1306493 (Nat. Arb. Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Respondent has attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website. Respondent registered the domain name to create a likelihood of confusion with Complainant and Complainant’s mark in order to profit from users looking for Complainant’s site to purchase tickets to the COACHELLA music festival. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Respondent registered the <hmcoachella.com> domain name with actual knowledge of Complainant’s COACHELLA mark which is evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name)."
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 <hmcoachella.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 28, 2016
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