Coachella Music Festival, LLC v. Darrell West / Myway Ventures LLC
Claim Number: FA1610001698768
Complainant is Coachella Music Festival, LLC (“Complainant”), represented by David J. Steele of Tucker Ellis, LLP, California, USA. Respondent is Darrell West / Myway Ventures LLC (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is/are <coolcoachellatshirts.com>, registered with 1&1 Internet SE.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 18, 2016; the Forum received payment on October 18, 2016.
On October 20, 2016, 1&1 Internet SE confirmed by e-mail to the Forum that the <coolcoachellatshirts.com> domain name is registered with 1&1 Internet SE and that Respondent is the current registrant of the name. 1&1 Internet SE has verified that Respondent is bound by the 1&1 Internet SE 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 October 21, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 10, 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@coolcoachellatshirts.com. Also on October 21, 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. Also on October 21, 2016, Respondent sent an E-Mail to the Forum, see below.
Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On November 15, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 owns and produces the famous Coachella Valley Music and Arts Festival (“Coachella”), the country’s premier music and arts festival. Held annually at the 78-acre Empire Polo Club in the beautiful Southern California desert, Coachella is one of the most critically acclaimed music festivals in the world. The first Coachella festival, held in October 1999, drew some 25,000 attendees into the California desert a few hours’ drive from Los Angeles, in Indio, California. Over the years, both the festival’s attendance, and its prominence within the music industry, have grown. Complainant registered the mark COACHELLA in the United States in 2007. Complainant extensively promotes Coachella through a variety of media, including via the Internet, including and on numerous social media sites including Facebook, Twitter, and Instagram, to list a few. Complainant invested over $680,000 dollars in 2015 in media and related content to promote Coachella.
According to Complainant, the disputed domain name is confusingly similar to its mark because it combines the famous COACHELLA mark with the descriptive word “cool” and the generic word “tshirts” as well as the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name for the following reasons: (a) Respondent is not commonly known by the disputed domain name; (b) Respondent has not used the domain name with any bona fide offering of goods or services because the website resolves to an error message; and (c), Respondent has not made any legitimate noncommercial or fair use because the domain name is not being used at all. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith because the COACHELLA mark is well-known, consequently Respondent’s knowledge when registering and using the mark is imputed as bad faith under Policy ¶ 4(a)(iii). Further, inactive holding also suggests bad faith registration and use under a nonexclusivity consideration of Policy ¶ 4(a)(iii). Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, in an E-Mail dated October 21, 2016 Respondent states (verbatim): “I have no clue what this is about. And this domain was canceled right after it was purchased because the client closed their doors. It was never verified via icann either. You are more than welcome to it. I'm surprised one and one never released it after we canceled it.”
The panel will not make any findings of fact, for the reasons explained below.
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."
In this case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
The same conclusion was reached by the Panel in Boehringer Ingelheim International GmbH v. Modern Limited - Cayman Web Development, FA0211000133625 <boehringeringelheim.com> (National Arbitration Forum, January 9, 2003) and in Alstyle Apparel/Active Wear v. John Schwab d/b/a Alstyle de Mexico, FA0307000170616 <alstyleapparel.com> (National Arbitration Forum, September 5, 2003).
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.
For the reasons given above, the Panel will not make any findings for this element of the Policy.
For the reasons given above, the Panel will not make any findings for this element of the Policy.
For the reasons given above, the Panel will not make any findings for this element of the Policy.
Given the common request of the parties, it is Ordered that the <coolcoachellatshirts.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 15, 2016
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