Coachella Music Festival, LLC v. Garik Mitchell / ChellaVibes
Claim Number: FA1803001778952
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Garik Mitchell / ChellaVibes (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chellavibes.com>, registered with Tucows Domains Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 26, 2018; the Forum received payment on March 26, 2018.
On March 27, 2018, Tucows Domains Inc. confirmed by e-mail to the Forum that the <chellavibes.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 27, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 16, 2018 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@chellavibes.com. Also on March 27, 2018, 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 Forum transmitted to the parties a Notification of Respondent Default.
On April 17, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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 name be transferred from Respondent to Complainant.
A. Complainant
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the CHELLA mark. Respondent’s domain name is confusingly similar to Complainant’s CHELLA mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <chellavibes.com> domain name and that Respondent registered and uses the 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.
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 (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 to its CHELLA mark through a registration with the USPTO (Reg. No. 5,075,233, registered Nov. 1, 2016). Registration of a mark with the USPTO is sufficient to demonstrate rights to a mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Accordingly, Complainant has rights to its CHELLA mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s <chellavibes.com> domain name is confusingly similar to its CHELLA mark. The combination of an entire mark with a descriptive term and a gTLD does not distinguish the resultant domain name from the incorporated mark per Policy ¶ 4(a)(i). See Gillette Co. v. RFK Assocs., FA 492867 (Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark). Here, Respondent’s domain name incorporates the entire CHELLA mark, and adds the descriptive term “vibes,” and the “.com” gTLD. Consequently, Respondent’s additions to Complainant’s mark do not distinguish the resultant domain name sufficiently to defeat a finding of confusing similarity for purposes of Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <chellavibes.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues Respondent has no rights or legitimate interests in the <chellavibes.com> domain name. Further, Complainant contends Respondent is not commonly known by the domain name. A respondent can be found not to be commonly known by a domain name based on the WHOIS information of record, or due to the respondent’s lack of license, permission, or authorization from a complainant to use its mark. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The WHOIS information of record lists the registrant as “Garik Mitchell and Chellavibes.” Further, Complainant indicates it has never granted license, authorization, or permission to Respondent to use the CHELLA mark. Accordingly, the Panel finds Respondent is not commonly known by the <chellavibes.com> domain name.
Complainant asserts Respondent is not using the <chellavibes.com> domain name in connection with bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, Complainant maintains, Respondent is using the domain name to divert Complainant’s customers to Respondent’s website for commercial gain. Such use does not satisfy Policy ¶¶ 4(c)(i) and (iii). See Vanderbilt Univ. v. U Inc., FA 893000 (Forum Feb. 19, 2007) (holding that the respondent did not have rights or legitimate interests in a domain name where it was redirecting Internet users to its own website promoting the respondent’s books unrelated to the complainant); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). The record shows that Respondent’s resolving website prominently displays Complainant’s own copyright-protected photographs and purports to sell apparel, jewelry, and other goods. Complainant claims this use trades on the goodwill of Complainant’s marks, as the marks are extensively used in connection with apparel and other merchandise. The Panel agrees and finds Respondent’s use of the <chellavibes.com> domain name is not in accordance with Policy ¶¶ 4(c)(i) and (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts Respondent registered and uses the <chellavibes.com> domain name in bad faith as Respondent’s domain name diverts Internet users in order to sell competing goods for commercial gain. Such use can be found to be in bad faith per Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum January 9, 2018) (finding that respondent’s use of the disputed domain name to offer competing loan services disrupts complainant’s business under Policy ¶ 4(b)(iii)); see also CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). The record supports Complainant’s contention that Respondent uses the <chellavibes.com> domain name to divert Internet users interested in Complainant to a website offering competing goods. Consequently, the Panel finds Respondent registered and uses the <chellavibes.com> domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant also contends that its CHELLA mark is so popular and well known that Respondent certainly had actual knowledge of Complainant’s rights in the mark when the <chellavibes.com> domain name was registered. The registration of a confusingly similar domain name which is obviously connected with a particular trademark owner by someone with no connection with the mark can indicate bad faith. See Red Bull GmbH v. Gutch, D2000-0766 (WIPO Sept. 21, 2000) (finding that the respondent’s expected use of the domain name <redbull.org> would lead people to believe that the domain name was connected with the complainant, and thus is the equivalent to bad faith use). The Panel may agree and find Respondent registered the <chellavibes.com> domain name in bad faith per Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chellavibes.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson Panelist
Dated: April 30, 2018
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