WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. Dotsan
Case No. D2002-0167
1. The Parties
The Complainant is Ticketmaster Corporation, an Illinois corporation located at 3701 Wilshire Boulevard, Los Angeles, Ca 90010, USA. Its authorized representatives are Robert W. Sacoff and John M. Murphy, Pattishall, McAucliffe, Newbury, Hilliard & Geraldsen, 311 South Wacker Drive, Suite 5000, Chicago, Ill, 60606, USA, and Janet Shih Hajek, Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, 1700 Diagonal Road, Suite 550, Alexandra, VA 22314, USA.
The Respondent is Dotsan, 35-37 Sunder Mahal, Mumbai, 400021, India
2. The Domain Name and Registrar
The domain names at issue are and .
The Registrar is B, Inc. 7 East Redwood Street, Third Floor, Baltimore 21202, USA
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("the Center") by e-mail on February 18, 2002, and a hardcopy was received by the Center on February 21, 2002. The Center acknowledged the receipt of the Complaint on February 21, 2002.
On February 25, 2002, the Center sent to B a request for verification of registration data. At the same date, B confirmed to be the Registrar, that the Respondent is the Registrant of the domain name and , that the administrative contact and the technical contact is R.S. Potdar, Dotsan, at the same address as the Respondent.
WIPO verified that the Complaint satisfies the Rules for Uniform Domain Name Dispute Resolution Policy and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy and that payment was properly made. The Panel is satisfied this is the case. On February 27, 2002, the Complaint was properly notified in accordance with the Rules, paragraph 2(a), and the administrative proceedings commenced. On March 7, 2002, the Notification of Complaint and the Complaint were returned from the Respondent�s postal address.
Since no communication was received from the Respondent within the time limit set, the Center sent a default notification to the Respondent, on March 21, 2002.
On March 26, 2002, the Center notified the Parties that an Administrative Panel, composed of a single member, Dr. Gerd F. Kunze, had been appointed and that the Panelist had duly submitted a "Statement of Acceptance and Declaration of Impartiality and Independence" to the Center.
No further submissions were received by the Center or the Panel. The date scheduled for issuance of the Panel�s decision is April 8, 2002.
4. Factual Background
A. Complainant
The Complainant is the global leader in live event ticket sales. It serves more than 6200 clients worldwide and acts as the exclusive ticketing service for hundreds of leading arenas, stadiums, performing arts venues and theaters.
The Complainant is the owner of registered marks (trademarks and service marks) for the word TICKETMASTER, standing alone, or in combination with graphical elements, in over 70 countries, including the United States, the European Community and the United Kingdom (where inter alia the word TICKETMASTER is registered) and is the owner of pending applications for its mark in many other countries, including India, where several marks, including the word mark TICKEMASTER, were applied for registration on October 5, 2000, as listed in Exhibit 5 to the Complaint. In particular, the Complainant is the owner of the US service mark registration no. 1 746 016, dated January 12, 1993, for the word TICKETMASTER, covering accounting services for ticket sales rendered by computer, ticket agency services for sports events, musical concerts and other entertainment events, etc. in international class 35; and of the US service mark registration no. 2 464 582, dated June 26, 2001, with application date of October 13, 1999, for the word TICKETMASTER, covering on-line ticket agency services for sporting events, musical concerts and other entertainment events, in class 35. These marks are evidenced by copies of the US-registrations in Exhibit 4 to the Complaint. Whilst "ticket" and "master" are words of common English language, their combination is arbitrary and original. As a result of the long standing extensive use of the mark TICKETMASTER by the Complainant it has become internationally known and, at least in the United States, well-known for the Complainant�s activities.
The Complainant uses the domain name in connection with online-ticketing services, as evidenced by a color print-out of the home page for its website in Exhibit 6. Additionally, its affiliates in Canada, Mexico, Ireland, the United Kingdom and Australia maintain similar websites at local ccTLDs (as evidenced in Exhibit 7).
B. Respondent
The Respondent registered on September 5, 2001, the domain name and on September 10, 2001, the domain name and is using both domain names for a link to a pop-up dialog box at promoting gambling and encouraging the Internet user to enter an on-line gambling web site. After clicking "OK" within this dialog box, the user is taken to one of several gambling websites (as evidenced by Exhibit 9). However, when the visitor decides not to follow that invitation and is clicking "cancel" or closing the dialog box, the browser window directs the Internet user to the home page of , a virtual ticket browser website (as evidenced by Exhibit 10).
5. Parties� Contentions
A. Complainant
The Complainant submits that (1) the domain names and are identical or confusingly similar to a trademark or service mark, in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain names; (3) the domain names were registered and are being used in bad faith.
B. Respondent
The Respondent has failed to submit any statement. It has therefore not contested the allegations of the Complaint and the Panel shall decide on the basis of Complainant�s submissions, and all inferences that can reasonably be drawn therefrom (Rule 14(b) or the Policy).
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the domain names of the Respondent be transferred to the Complainant:
1) the domain names are identical or confusingly similar to a trademark or service mark ("mark") in which the Complainant has rights; and
2) the Respondent has no rights or legitimate interests in respect of the domain names; and
3) the domain names have been registered and are being used in bad faith.
1) Confusing Similarity with a Mark in which the Complainant has rights
The domain names and are not identical with the mark "TICKETMASTER" in which the Complainant has rights. However, the only difference is in one case the replacement of one letter and in the other case the addition of one letter, thus creating the impression that they are misspellings of the Complainant�s mark (the generic tld indicator".com" cannot be taken into consideration when judging confusing similarity). The substitution of the "r" for the "e" in "tickrt" respectively the additional "c" in "tickect" is likely to be overlooked and in view of the close similarity of both words to the common word "ticket", in oral communication the domain names will be confused in pronunciation with the Complainant�s mark. Based on general principles of confusing similarity of marks, the domain names and are therefore nearly identical and clearly confusingly similar to the mark TICKETMASTER, in which the Complainant has rights. Also, when taking into account the particularities of the Internet, confusion will arise. The domain names are typographical variations of the Complainant�s mark and domain name, which are likely to be erroneously typed by Internet users who intend to accede the Complainant�s website under its domain name and are mistyping it. In view of the use of the domain names made by the Respondent (see above 4B), Respondent�s domain names and direct such users either to a gambling site or to , the website of a competitor of the Complainant, providing services nearly identical to those offered by the Complainant. Such use is likely to mislead customers into believing that the Respondent, respectively are somehow associated with the Complainant (such as affiliated, sponsored or otherwise endorsed).
That such misspelling or typographical variation of a mark is confusingly similar to the Complainant�s mark has repeatedly been held in decisions under the Policy (e.g. WIPO Case No. D2000-1160, Alta Vista Company v. O.F.E.Z.; WIPO Case No. D2001-0302, Dow Jones & Company Inc. and Dow Jones LP v. John Zuccarini).
2) Legitimate Rights or Interests in respect of the Domain Name
The Respondent has no connection or affiliation with the Complainant, who has not consented to the Respondent's use of the domain names, which are so similar that they give the impression to be a misspelling the Complainant�s mark. Respondent does not make any use of the domain names for its own legitimate commercial or non-commercial activities, if any. As said before, Respondent�s domain names and lead to a pop-up dialog box, which directs users either to a gambling site or to , the website of a competitor of the Complainant, providing services nearly identical to those offered by the Complainant. Such use which as a kind of "postal address" links the visitor to other websites offering competitive products has repeatedly been held not to be a bona fide offering of goods or services. Even if the Respondent does not use its domain names to promote commercial activities of its own, the Panelist is satisfied that such use cannot be considered to be non-commercial. It would make no sense for the Respondent to provide links to gambling sites and to a competitor of the Complainant, if it where not to attract a fee, the more as such arrangements are common. Finally, for the same reason that the Respondent does not promote its own commercial activities, the Respondent has not been able to become known under these domain names.
In the absence of any submission of the Respondent, the Panel therefore concludes that the Respondent has no rights or legitimate interests vis-à-vis the Complainant in the domain names and .
3) Registration and Use in Bad Faith
For a Complainant to succeed, the Panel must be satisfied that a domain names have been registered and is being used in bad faith.
The Respondent has not attempted to sell the domain names to the Complainant. However, it uses them in a manner which must be considered to be use in bad faith, and at the same time that use is a strong indication that the Respondent has registered its domain names in bad faith:
The Panelist assumes that the Respondent had knowledge of the Complainant�s mark TICKETMASTER, when it registered the domain names and . Such conclusion cannot only be drawn from the actual use that the Respondent is making of its domain names, but also from the fact that it chose two apparent misspellings of the Complainant�s mark and domain name . It cannot reasonably be imagined that the Respondent chose for its domain name a combination of the English word "master" and the spellings "tickrt" and "tickect" instead of "ticket", a second English word, if it had not known the Complainant�s mark and domain name (the very existence of the Complainant�s domain name prevented the Respondent from registering ""). This alone is already an indication of registration in bad faith. Taking into account the use which the Registrant is making of its domain names, as described before, and in the absence of any submission of the Respondent to the contrary, the Panelist is satisfied that the Respondent has registered the domain names in bad faith, i.e. in order to be able to make that use of its domain names.
As said before, the Respondent has been using the domain names and as a link to a pop-up dialog box in order to direct visitors, who are mistyping the Complainant�s domain name, either to a gambling site or to the homepage of a competitor of the Complainant. These visitors cannot escape. Even if they try to leave the dialog box, which is appearing when they type the Respondent�s domain name, by clicking "cancel" or even by closing the dialog box, they will be linked to the website of a competitor of the Complainant. By such use the Respondent intentionally attempts to attract Internet users to an on-line location, which creates a likelihood of confusion with the Complainant�s mark as to the source, sponsorship, affiliation, or endorsement of that location. The fact that such confusion may be dispelled, and replaced by annoyance or disgust once the nature of the site is revealed, does not negate the fact of initial confusion, as rightly has been concluded in the decision WIPO Case No. D2001-0761, Royal Bank of Canada v. Personal.
In the absence of any submission of the Respondent, the Panelist has no doubt that the Respondent makes that use of his domain names for commercial gain. Thus it is pursuing an activity, sometimes called "typosquatting" (see the above cited decision WIPO Case No. D2001-0302), which must be considered to be bad faith under the Policy. Even if item 4b) iv) of the Policy refers to the website or other location of the Respondent, whilst the Respondent uses its domain names primarily in order to revert the visitor to other websites, the Panelist considers the circumstances of the case to be evidence of registration and use in bad faith, at least comparable to the circumstances listed in item 4b) iv) of the Policy. If one considers the pop-up dialog box, which is appearing when an Internet user types one of the Respondent�s domain names, to be "an other on-line location", the Respondent�s activity clearly is covered by item 4b) iv). Be it as it may, the circumstances as listed in item 4b) i) to iv) are not exhaustive and the Panelist is satisfied that the pattern developed by the Respondent is evidence of registration and use in bad faith.
The Complainant has submitted a number of additional arguments to demonstrate that the Respondent acted in bad faith. There is indeed strong evidence that the Respondent provided false contact information when applying for the domain name registration, since a cease and desist letter of the Complainant was returned undeliverable (and also the Center�s Notification of Complaint to that address was returned) and the administrative and technical contact, which is claimed to be at the Respondent�s address has an e-mail address in the Ukraine. Also there are striking similarities of the factual background of the present case and other cases, where the infringing domain names resolved to pop-up boxes with texts comparable to the one used by the Respondent and also leading to gambling sites.
However, in the absence of any submission of the Respondent, the Panelist is satisfied that already the before described pattern of activity of the Respondent, as evidenced by the Complainant, leads to the clear conclusion that the Respondent has registered and is using the domain names and in bad faith, which may be summarized as follows:
The Respondent intentionally registered as its domain names two misspellings of the Complainant�s mark and domain name, in order to misdirect for commercial gain visitors through a link to a pop-up box to either a gambling site, or to the homepage of a competitor of the Complainant. Thus it created and continues to create a likelihood of confusion with the Complainant�s mark as to the source, sponsorship, affiliation or endorsement of the websites to which the traffic is diverted.
7. Decision
The Panel decides that the Complainant has proven each of the three elements of paragraph 4(a) of the Policy.
Pursuant to paragraph 4(i) of the Policy and paragraph 15 of the Rules, the Panel requires that the registration of the domain names and be transferred to the Complainant.
Dr. Gerd F. Kunze
Sole Panelist
Dated: April 8, 2002
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