Future Festivals, LLC v. John Needham / BigStub, Inc.
Claim Number: FA1608001691404
Complainant is Future Festivals, LLC ("Complainant"), represented by David J. Steele of Tucker Ellis, LLP, California, United States. Respondent is John Needham / BigStub, Inc. ("Respondent"), California, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <deserttripfestivaltickets.net>, 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 August 28, 2016; the Forum received payment on August 28, 2016.
On August 29, 2016, Godaddy.Com, Llc confirmed by email to the Forum that the <deserttripfestivaltickets.net> 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 August 29, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 19, 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@deserttripfestivaltickets.net. Also on August 29, 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 September 26, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Also on September 26, 2016, the Forum received email correspondence from Respondent, stating that he did not dispute the matter.
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 a formal response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant owns and produces a music festival to be held in October 2016 in Indio, California, under the name Desert Trip Music Festival. Information concerning the festival was reported in the press in April 2016, and it was officially announced on May 3, 2016. Tickets sold out on the first day of sale, and attendance is expected to exceed 70,000 on each of two weekends. Complainant claims common-law rights in DESERT TRIP and has filed multiple applications to register the mark, all of which are currently pending.
On May 3, 2016, the same day on which the festival was officially announced, Respondent registered the disputed domain name <deserttripfestivaltickets.net> through a privacy registration service, in an apparent effort to conceal his identity. The domain name redirects users to a commercial website that advertises tickets to the Desert Trip Music Festival and to competing events. Complainant states that it has not licensed Respondent to use its mark, that Respondent has no legal relationship with Complainant that would entitle him to use the mark, and that Respondent is not commonly known by the disputed domain name. Complainant asserts that Respondent's offer to sell tickets to the festival is unlawful because the tickets are revocable licenses that cannot be commercially resold without violating the license agreement.
Complainant contends on these grounds that the disputed domain name <deserttripfestivaltickets.net> is confusingly similar to its DESERT TRIP mark; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a formal response. In his email correspondence to the Forum, Respondent stated that he did not dispute the matter and would transfer the disputed domain name to Complainant.
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(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 alleged sufficient facts to support a claim of common-law rights in the DESERT TRIP mark, a claim that has been accepted by two previous Panels under the Policy. See Coachella Music Festival, LLC & Future Festivals, LLC v. Bennett Carroccio / OurSquare Inc., FA 1687024 (Forum Sept. 20, 2016); Coachella Music Festival, LLC & Future Festivals, LLC v. Mary Jane Leonhardi, FA 1685020 (Forum Sept. 14, 2016). The disputed domain name <deserttripfestivaltickets.net> merely appends to Complainant's mark the phrase "festival tickets" and the ".net" top-level domain, and omits the spaces. These changes do not diminish the similarity between the domain name and Complainant's mark. See, e.g., Coachella Music Festival, LLC & Future Festivals, LLC v. Bennett Carroccio / OurSquare Inc., supra (finding <2016deserttrip.net> and other domain names confusingly similar to DESERT TRIP); Coachella Music Festival, LLC & Future Festivals, LLC v. Mary Jane Leonhardi, supra (finding <desertripconcert.com> and other domain names confusingly similar to DESERT TRIP). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and has been used to market competing products. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, 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 name.
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."
The disputed domain name was registered through a privacy registration service on the same day that Complainant's festival was publicly announced, and it has been used to redirect users to a website that advertises tickets to competing events. These circumstances are indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. The Panel therefore finds that the disputed domain name was registered and has 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 <deserttripfestivaltickets.net> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 1, 2016
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