Coachella Music Festival, LLC v. Michael T. Nishimura
Claim Number: FA1604001670269
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Michael T. Nishimura (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coachellacams.com>, registered with NameSilo, 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 A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 12, 2016; the Forum received payment on April 12, 2016.
On April 13, 2016, NameSilo, LLC confirmed by e-mail to the Forum that the <coachellacams.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 April 18, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 9, 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@coachellacams.com. Also on April 18, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On May 13, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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’s operates the COACHELLA music festival and through its registration with the United States Patent and Trademark Office (“USPTO”) owns the COACHELLA mark (e.g., Reg. No. 3,196,119, registered Jan. 9, 2007). Respondent’s <coachellacams.com> domain name is confusingly similar to the COACHELLA mark because it includes the mark with the addition of the generic term “cams”.
Respondent has not rights or legitimate interest in the <coachellacams.com> domain name. Respondent is not commonly known by, or licensed to use the COACHELLA mark. Respondent is not making a bona fide offering or noncommercial fair use with the disputed domain. Rather, Respondent is using <coachellacams.com> to resolve to a webpage featuring adult oriented subject matter.
Respondent has registered the disputed domain name in bad faith. Respondent’s use of the <coachellacams.com> domain name to resolve to a webpage featuring adult oriented material capitalizes on Internet user confusion to attract for commercial gain. Respondent’s bad faith is further demonstrated by its registration of the disputed domain name with knowledge of Complainant’s rights in the COACHELLA mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the <coachellacams.com> domain name was registered on March 14, 2016.
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 uses the COACHELLA mark in connection with its annual music festival. Complainant supports its claim of ownership over the COACHELLA mark through its trademark registrations with the USPTO (e.g., Reg. No. 3,196,119, registered Jan. 9, 2007). Trademark registrations with the USPTO are sufficient in establishing Complainant’s rights in the COACHELLA mark under Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015).
Complainant argues that the disputed domain name is confusingly similar to the COACHELLA mark, as Respondent has simply attached the generic term “cams”. Complainant notes that it live-streams its Festival via the Internet and that the term “cams” is an abbreviation for “cameras” used in live video streaming. The Panel concludes that the addition of the term “cams” does not create a significant difference under a Policy¶4(a)(i) analysis. See Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 19, 2016) (concluding that the addition of a generic term to a trademark is inconsequential under a Policy ¶4(a)(i) analysis.). Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s COACHELLA mark under Policy ¶ 4(a)(i).
It is Complainant’s position that Respondent lacks rights or legitimate interests in the disputed domain name. In so arguing, Complainant posits that Respondent is not commonly known by the disputed domain name, nor has Respondent been licensed or authorized to use the COACHELLA mark. The Panel sees that the WHOIS information lists “Michael T. Nishimura” as registrant of the disputed domain name, which Complainant presents as evidence that Respondent is not commonly known by the disputed domain name. Given the lack of evidence to infer otherwise, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)).
Further, Complainant urges that Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name. Rather, Complainant alleges that Respondent is using the disputed domain name to host adult oriented material on the resolving webpage. Use of a confusingly similar domain name to host pornographic material does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See, e.g., National Spiritual Assembly of the Bahá’ís of the United States v. Moniker Privacy Services, FA 1644005 (Forum Dec. 1, 2015).
Complainant alleges that Respondent’s use of the confusingly similar disputed domain name to attract Internet users to its own website, at which Respondent offers adult oriented subject matter, shows bad faith according to Policy
¶4(b)(iv). See America Online, Inc. v. Portaro, D2000-0992 (WIPO Dec. 4, 2000) (holding that the respondent’s use of the <aolcams.com> domain name, containing the registered mark “AOL”, to intentionally attract Internet users to a website featuring adult-oriented content, constituted bad faith registration and use under Policy ¶ 4(b)(iv)). This Panel similarly finds that Respondent has acted in bad faith under Policy ¶ 4(b)(iv), and consequently under 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 <coachellacams.com> domain name be TRANSFERRED from Respondent to Complainant
David A. Einhorn, Panelist
Dated: May 27, 2016
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