Coachella Music Festival, LLC v. Carmen Ibarcena
Claim Number: FA1603001667145
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Carmen Ibarcena (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <coachellaapp.com>, <coachellaapp.net>, <coachellaapp.org>, <coachellaapp.info>, <coachellapp.com>, <coachellapp.net>, <coachellapp.org>, and <coachellapp.info> 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 23, 2016; the Forum received payment on March 23, 2016.
On March 24, 2016, GoDaddy.com, LLC confirmed by email to the Forum that the <coachellaapp.com>, <coachellaapp.net>, <coachellaapp.org>, <coachellaapp.info>¸<coachellapp.com>, <coachellapp.net>, <coachellapp.org>, and <coachellapp.info> 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 March 25, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 14, 2016 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@coachellaapp.com, postmaster@coachellaapp.net, postmaster@coachellaapp.org, postmaster@coachellaapp.info, postmaster@coachellapp.com, postmaster@coachellapp.net, postmaster@coachellapp.org, and postmaster@coachellapp.info. Also on March 25, 2016, the Written Notice of the Complaint, notifying Respondent of the email 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 April 18, 2016, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant owns and produces a popular annual music and arts festival in California, and operates a mobile application (“app”) that provides information about the festival and enables consumers interested in the festival to interact with one another. Complainant uses COACHELLA and related marks in connection with the festival and associated mobile application. Complainant promotes the festival extensively; it states that its Facebook page has over 1.4 million likes, and its other social media accounts have several hundred thousand followers. Complainant owns various U.S. registrations for the COACHELLA mark, including a standard word mark registration; Complainant also claims common-law rights in the mark based upon extensive use dating back to 1999.
The disputed domain names <coachellaapp.com>, <coachellaapp.net>, <coachellaapp.org>, <coachellaapp.info>¸<coachellapp.com>, <coachellapp.net>, <coachellapp.org>, and <coachellapp.info> were registered by Respondent in March 2016 through a privacy registration service, in an effort to conceal Respondent’s identity. Complainant contends that the disputed domain names are confusingly similar to its COACHELLA mark; that Respondent has nor rights or legitimate interests in the domain names; and that the domain names were registered and are being used in bad faith. In support thereof, Complainant states that it has not licensed Respondent to use its mark, and asserts that Respondent is not commonly known by the domain names and has no legitimate reason for using the mark as the dominant portion of its domain names. Complainant states that the domain names resolve only to a “website coming soon” message.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of each of the disputed domain names; and that each of the disputed domain names was registered and has been used 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 names registered by Respondent are 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 names; and
(3) the domain names have been registered and are 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 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.”).
Each of the disputed domain names corresponds to Complainant’s COACHELLA mark, adding the generic term “app” (in some instances with the two consecutive letters collapsed into one letter “A”) and various top-level domains. These additions do not diminish the similarity between the domain names and Complainant’s mark. See, e.g., Philip Morris USA Inc. v. Marco Bosch, FA 1541088 (Nat. Arb. Forum Mar. 4, 2014) (finding <marlboroapp.com> confusingly similar to MARLBORO). The Panel finds that each of the disputed domain names is confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain names incorporate Complainant’s mark without authorization, and Respondent does not appear to have made any active use of the domain names. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of each of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and have been used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired “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 [Respondent’s] documented out-of-pocket costs directly related to the domain name.” Under paragraph 4(b)(ii), bad faith may be shown by evidence that a domain name was registered “in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent] ha[s] engaged in a pattern of such conduct.” Under paragraph 4(b)(iv), bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site 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 [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
These instances set forth in paragraph 4(b) are illustrative rather than exhaustive, and bad faith may be found based upon other circumstances in appropriate cases. Standard Bank of South Africa Ltd. v. Brian White, FA 1663527 (Forum Mar. 31, 2016). Furthermore, a domain name may be so closely connected with a well-known trademark that its very use suggests opportunistic bad faith. Id. Registering a domain name through a privacy service to conceal the registrant’s identity, though not dispositive, may also be indicative of bad faith. Id.
Respondent does not appear to have made any active use of the disputed domain names. In the absence of any explanation from Respondent, the Panel considers it reasonable to infer that Respondent registered the domain names intending to use them in a manner calculated to create and exploit confusion with Complainant’s mark, most likely either by selling the domain names or by using them to attract Internet users seeking Complainant, and that Respondent is maintaining the domain names for that purpose. See, e.g., Zoetis Inc. & Zoetis Services LLC v. Laurent Bertier, FA 1666519 (Forum Apr. 18, 2016) (finding bad faith registration and use in similar circumstances).
The pattern of bad faith registrations contemplated by paragraph 4(b)(ii) typically involves domain names corresponding to multiple trademarks, but can also involve multiple domain names targeted at a single Complainant. See, e.g., Telstra Corp. Ltd. v. Ozurls, D2001-0046 (WIPO Mar. 20, 2001). Although it is not clear whether Respondent here has registered domain names containing other trademarks (given Respondent’s use of a privacy registration service here and likely for other domain name registrations), the registration of eight variations of domain names containing “Coachella app” is sufficient to demonstrate a pattern in the view of this Panel. Cf. id. (finding pattern based upon registration of 15 “Telstra” domain names).
For the foregoing reasons, the Panel finds that the disputed domain names were registered and have been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coachellaapp.com>, <coachellaapp.net>, <coachellaapp.org>, <coachellaapp.info>, <coachellapp.com>, <coachellapp.net>, <coachellapp.org>, and <coachellapp.info> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 27, 2016
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