Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA1805001785199
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coechella.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 5, 2018; the Forum received payment on May 5, 2018.
On May 7, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <coechella.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 May 9, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 29, 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@coechella.com. Also on May 9, 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 June 4, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant, Coachella Music Festival, LLC, produces one of the most critically acclaimed music festivals in the world and has been doing so since 1999.
Complainant has rights in the COACHELLA mark, and multiple related marks, based upon its registration of the marks with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <coechella.com> domain name is confusingly similar to Complainant’s COACHELLA mark, as Respondent created the disputed domain name by merely replacing the letter “a” with the letter “e” to form a common misspelling of the COACHELLA mark, and appending a generic top-level domain name (“gTLD”) to the result.
Respondent has no rights or legitimate interests in the <coechella.com> domain name. Respondent is not commonly known by the disputed domain name, as the WHOIS information lists Respondent as “Carolina Rodrigues / Fundacion Comercio Electronico.” Complainant also has not authorized Respondent to use the COACHELLA mark in any manner. Further, Respondent does not use the domain name in connection with a bona fide offering of goods or services, or for any legitimate noncommercial or fair use. Rather, Respondent uses the domain name to redirect users to a webpage, <myeasyappz.com>, where it attempts to install malware onto users’ computers.
Respondent registered and is using the <coechella.com> domain name in bad faith. It intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Specifically, the domain name misdirects consumers searching for Complainant to the webpage <myeasyappz.com>, where Respondent attempts to install malware onto the consumers’ devices.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the COACHELLA mark by virtue of its registration of such mark with the USPTO, and otherwise.
Complainant’s rights in the COACHELLA mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent uses the <coechella.com> domain name to misdirect consumers searching for Complainant to a website that attempts to install malware onto the users’ devices.
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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for the COACHELLA trademark is sufficient evidence of its rights in such mark for the purposes of Policy ¶4(a)(I). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO).
Additionally, the at-issue domain name contains Complainant’s COACHELLA trademark with its “a” replaced by an “e” and the top-level domain name “.com” appended thereto. The differences between the at-issue <coechella.com> domain name and Complainant’s COACHELLA trademark are insufficient to distinguish one from the other for the purposes of the Policy. Therefore, the Panel finds that pursuant to Policy ¶4(a)(i) Respondent’s <coechella.com> domain name is confusingly similar to Complainant’s COACHELLA trademark. See Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (finding, “The domain name differs from the mark only in that the domain name substitutes the letter ‘a’ in the word ‘steak’ with the letter ‘c’ and adds the generic Top Level Domain (‘gTLD’) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information <coechella.com> identifies the domain name’s registrant as “Carolina Rodriques / Fundacion Comercio Electronico” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <coechella.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <coechella.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Additionally, Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii). See Google Inc. v. Gridasov, FA 474816 (Forum July 5, 2005) (finding that the respondent’s use of a disputed domain name “that attempts to download malicious computer software into the computers of those who visit the website . . . [which] may annoy or harm the users in some way . . . is harmful to Complainant as the users may assume that Complainant has some affiliation with the harmful content. Such use of a website that is presumably intended to jeopardize the goodwill Complainant has created in its mark is not, therefore, a use in connection with a bona fide offering of goods or services or a legitimate or fair use of the domain names pursuant to Policy ¶¶ 4(c)(i) or (iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the each at-issue domain name pursuant to Policy ¶4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below, Policy ¶ 4(b) specific bad faith circumstances as well as other circumstances lead the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4 (a)(iii) of the Policy.
As mentioned above regarding rights and legitimate interests, Respondent registered and uses the <coechella.com> domain name to direct internet users to a website which attempts to install malware on unintended visitors’ devices. Using the confusingly similar domain name to impermissibly capitalize on Complainant’s goodwill demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iv) and otherwise. See Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”). Moreover, Respondent’s use of the <coechella.com> domain name to attempt to disperse malware is, in itself, evidence of bad faith. See Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Using the disputed domain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Furthermore, the record shows that Respondent engages in typosquatting and that Respondent was aware of Complainant’s COACHELLA trademark prior to registering the domain name. Respondent’s intentional misspelling of Complainant’s trademark in forming the at-issue domain name shows that Respondent is engaged in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the resulting string in a domain name hoping that internet users will either inadvertently type the malformed string when searching for products or services related to the domain name’s target trademark, and/or on viewing the domain name will confuse the domain name with its target trademark. Here, in creating the at-issue domain name Respondent modifies Complainant’s COACHELLA trademark by replacing the trademark’s “a” with an “e”. Respondent intends that the intentionally malformed string is one that might also result from internet users’ inadvertently misspelling or mistyping Complainant’s trademark as part of a web address believed to be related to Complainant. The mistyping internet users are then delivered to a website where they are exploited. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Finally, Respondent registered the <coechella.com> domain name knowing that Complainant had trademark rights in COACHELLA. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of a near identical domain name to divert internet users to a website offering malware. It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <coechella.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coechella.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 5, 2018
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