Ticket Software, LLC v. Websites and Domains / Public Registrations
Claim Number: FA1502001603102
Complainant is Ticket Software, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Websites and Domains / Public Registrations (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwticketliquidator.com>, registered with WILD WEST DOMAINS, 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 February 3, 2015; the Forum received payment on February 3, 2015.
On February 3, 2015, WILD WEST DOMAINS, LLC confirmed by email to the Forum that the <wwwticketliquidator.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 February 4, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 24, 2015 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@wwwticketliquidator.com. Also on February 4, 2015, 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 March 4, 2015, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant operates an online marketplace for event tickets. Complainant has used the mark TICKET LIQUIDATOR in connection with this business since 2002, and the mark is registered with the U.S. Patent and Trademark Office. Complainant claims that its mark enjoys widespread consumer recognition, asserting that Ticketliquidator.com is the third largest ticket resale website in the United States and that Complainant’s exchange includes more than 3.2 million tickets for over 60,000 events worldwide.
Complainant contends that the disputed domain name <wwwticketliquidator.com>, registered by Respondent in 2005, is confusingly similar to its TICKET LIQUIDATOR mark. Complainant contends further that Respondent has no rights or legitimate interests in respect of the disputed domain name and that the disputed domain name was registered and is being used in bad faith. In support thereof, Complainant alleges inter alia that Respondent has not been commonly known by the domain name; that Respondent is not sponsored by or legitimately affiliated with Complainant in any way; that Complainant has not given Respondent permission to use its mark in a domain name; that Respondent is not using the domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use; that Respondent registered the domain name significantly after Complainant commenced use of its mark; and that the domain name represents an instance of “typosquatting,” which is in itself evidence of bad faith. Complainant accuses Respondent of using the domain name to redirect Internet users to Complainant’s own website through Complainant’s affiliate program, in direct violation of the terms of that program. Complainant asserts that such use is in bad faith, and indicates that Respondent registered the domain name with Complainant’s mark in mind.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name 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 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(e), 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.”).
Complainant holds two relevant registrations with the U.S. Patent & Trademark Office: registration number 3,292,461 on the Supplemental Register, issued in 2007; and registration number 4,357,070 on the Principal Register, issued in 2013. Both registrations are for the same mark, TICKET LIQUIDATOR; both are for the same class of goods and services (ticket agencies in the field of concerts, theaters, entertainment and sporting events); and both reflect the same dates of first use and first use in commerce, April 8, 2002. The latter registration, on the Principal Register, is evidence that Complainant owns trademark rights in TICKET LIQUIDATOR. See, e.g., Advance News Service Inc. v. Vertical Axis, Inc. / Religionnewsservice.com, D2008-1475 (WIPO Dec. 11, 2008) (distinguishing between effects of registration on Principal and Supplemental Register). It is irrelevant for purposes of paragraph 4(a)(i) of the Policy whether those rights predate the registration of the disputed domain name. See, e.g., Esquire Innovations, Inc. v. Iscrub.com c/o Whois Identity Shield; and Vertical Axis, Inc, Domain Adminstrator, D2007-0856 (WIPO Oct. 5, 2007).
The disputed domain name is identical to Complainant’s mark, but for the omission of a space and the addition of the generic prefix “www” and the “.com” top-level domain. These additions do not substantially diminish the similarity with Complainant’s mark. See, e.g., Meadowbrook, L.L.C. d/b/a The Land of Nod v. Venkateshwara Distributor Private Ltd., FA 1419361 (Nat. Arb. Forum Jan. 24, 2012) (finding <wwwlandofnod.com> confusingly similar to THE LAND OF NOD); Ticketmaster Corp. v. Kausar, D2002-1018 (WIPO Dec. 18, 2002) (finding <wwwticketmaster.com> identical or confusingly similar to TICKETMASTER). The Panel finds that the disputed domain name 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 a 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 name incorporates Complainant’s mark without authorization, and apparently its sole use has been to defraud Complainant by violating the terms of its affiliate program. See PersonalizationMall.com v. Dash, FA 1563874 (Nat. Arb. Forum July 16, 2014) (holding that use of domain names to divert Internet users in breach of affiliate program terms does not give rise to rights or legitimate interests). 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 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)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name “primarily for the purpose of disrupting the business of a competitor.” 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.”
Respondent’s registration of a domain name that corresponds to Complainant’s mark prefixed by “www,” together with the use of the domain name to profit from confusion with Complainant’s mark through Complainant’s own affiliate program, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. See PersonalizationMall.com v. Dash, supra. Accordingly, 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 <wwwticketliquidator.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 6, 2015
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