WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. IT-Norind
Case No. D2004-0068
1. The Parties
The Complainant is Ticketmaster Corporation, West Hollywood, California, United States of America ("the Complainant").
The Respondent is IT-Norind, Opp. Forest Depot, Sihawa Shownk, Chattisgarh, Dhamtari, India ("the Respondent").
2. The Domain Name and Registrar
The disputed Domain Name ("the Domain Name") is registered with Go Daddy Software, Inc., Scottsdale, Arizona, United States of America. ("the Registrar").
3. Procedural History
The Complaint was filed with the World Intellectual Property Organization, Arbitration and Mediation Center ("the Center") on January 27 by e-mail and on January 30, 2004, by hardcopy. On January 27, 2004, the Center transmitted by e-mail to Go Daddy Software Inc., a request for registrar verification in connection with the Domain Name at issue. On January 27, 2004, Go Daddy Software Inc., transmitted by e-mail to the Center its verification response, confirming that the Respondent is listed as the Registrant and providing the contact details for the administrative, billing and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules").
In accordance with the Rules, paragraph 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 3, 2004. In accordance with the Rules, paragraph 5(a), the due date for response was February 23, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent�s default on February 25, 2004.
The Center appointed Dr. Thomas Legler as Sole Panelist in this matter on March 5, 2004 . The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
When reviewing the case file, the Panel noticed that the Complainant had omitted to submit the "registration details of CTM 143, 461 and UK 2, 248, 984" for the trademark "Ticketmaster" under Annex C. Enclosed at the Exhibit under "Annex C" was an excerpt from the Registrar�s domain name registration agreement but no document referring to the relevant trademark registration. Accordingly, pursuant to paragraphs 10(c) and (d) of the Rules, the Panel invited the Complainant by Procedural Order No. 1, dated March 19, 2004, to send a copy of the correct Exhibit within five (5) calendar days of the date of that communication to the Center. On March 22, 2004, the Panel received the requested excerpts from the Center.
4. Factual Background
A. The Complainant
The Complainant is a well-known life event ticket seller. It serves in many cases as the exclusive ticketing service for hundreds of leading stadiums, arenas, performing art venues and theatres. Pursuant to Complainant�s indications, it sold more than 95 Million. tickets in 2002 through its network of approximately 3,300 retailed tickets Center outlets in 210 cities in the UK, US, Canada, Ireland, Mexico and Australia, more than 15 worldwide telephone call centers as well as its specific Ticketmaster websites.
The Complainant is the owner of the trademark "TICKETMASTER" and variations thereof in connection with its ticketing services throughout the UK and internationally. In particular, the Complainant owns the registered community trademark "CTM No. 143, 461" for the wordmark "TICKETMASTER" filed on April 1, 1996, in classes 9, 16, 35, 39 and 41 as well as the UK trademark No. 2, 248, 984 for the wordmark "Ticketmaster" filed on October 14, 2000, in classes 9, 16, 35, 38, 41 (as evidenced in Annex C).
The Complainant furthermore submits a list of registrations of the "TICKETMASTER" trademark in over 79 other countries (Annex D).
The Complainant uses the Domain Name in connection with online ticketing services as evidenced by various printouts of its website in Annex E. Additionally, its affiliates in Canada, Mexico, Ireland, Norway, Australia, Denmark and Brazil maintain similar websites at local ccTLDs (as evidenced in Annex E).
B. Respondent
The Respondent registered the Domain Name on August 3, 2003, and was using the Domain Name for a link to a website offering tickets for top selling events listed as sports, concerts and other events. Notwithstanding the recent registration of the Domain Name , the Respondent claims to have operated under the name "global ticketmaster" for over 15 years. This is at least what results from Annex A, submitted by the Complainant. Indeed, the Panel has to refer to the few printouts submitted by the Complainant, since the Respondent did not submit any response and as the "www." website has since been removed, showing now the comment "we are renovating to provide a more pleasant service. We will be back soon."
Nothing more is known about the Respondent.
5. Parties� Contentions
A. Complainant
The Complainant submits that the Domain Name is confusingly similar to its trademark "Ticketmaster" in which it has rights.
Furthermore, the Complainant holds that the Respondent has no rights or legitimate interests in respect of the Domain Name for the following reasons:
- the Respondent claims long use when actual use is less than six months;
- the Respondent engages in dishonest practices;
- the Respondent has no trademark rights in the Domain Name and the Respondent has no legitimate interest and can show no bona fide use.
Furthermore, the Complainant indicates that the Domain Name was registered and is being used in bad faith.
The Complainant shows in the Complaint that Respondent�s website, when it was still in use, revealed that it has been largely copied from a ticket provider called "Rasorgator" (Annex G). When searching the Google search engine for "globalticketmaster" only a few not relevant hits are shown, whereas a search for "Ticketmaster" would reveal about 808,000 hits. Hence, according to the Complainant, it is unconceivable that the Respondent had been selling tickets and operating for more than 15 years as ticket seller.
Moreover, the Complainant indicates that the pricing policy adopted by the Respondent is dishonest and misleading. This resulted from a privately instructed investigation. The Complainant produces the investigative agent�s report on a test purchase as Annex M. It results from this report that the Respondent offered tickets for more than double the actual cost of the ticket and charged excessive costs for delivery i.e. at least 25 times higher than the cost incurred.
Pursuant to the Complainant, the Respondent�s website under the Domain Name offers tickets to the many of the same events as offered by "Ticketmaster" (Annexes F and K). The Complainant concludes that the Respondent�s intentional use of the Domain Name is likely to mislead customers into believing that Respondent is the Complainant or that it is legitimately associated with the Complainant�s Ticketmaster-business hereby tarnishing the Complainant�s reputation in its trademarks. Also, the Respondent cannot, under Policy section 4(c)(ii), show bona fide use of the Domain Name prior to notification of this dispute under Policy Section 4(c)(i).
Moreover, the Complainant is of the opinion that the Domain Name was registered and is used to intentionally attract for commercial gain Internet users to the Respondent�s website by creating a likelihood of confusion with the Complainant�s trademarks as to source, sponsorship, affiliation or endorsement for the Respondent�s website or location or of a product or service on the Respondent�s website or location. The Complainant indicates that the Respondent�s registration and use of the Domain Name constitutes cybersquatting, since a significant number of consumers looking for the "www." global site, will type the Domain Name and will be taken to the Respondent�s website. The Complainant furthermore indicates that the Respondent had actual knowledge of the Complainant�s rights when it registered its Domain Name. Pursuant to the Complainant, a trademark search for trademarks in any European country would have disclosed the Complainant�s trademark rights, at the very least, at CTM-level, if not also at local level.
Finally, Complainant indicates that the Respondent�s diversion of traffic to several websites offering goods and services competing with those of the Complainant is also indicative of bad faith, pursuant to paragraph 4(b)(iii) and (iv) of the Policy.
In the light of the foregoing, the Complainant requests the Administrative Panel to issue the decision that the Domain Name be transferred to the Complainant.
B. Respondent
The Respondent has failed to submit any Response. 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) of 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 name of the Respondent be transferred to the Complainant:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name, and
(iii) the domain name has been registered and is being used in bad faith.
A. Confusing similarity with a mark in which the Complainant has rights
Complainant�s trademark "TICKETMASTER" is composed of the words "ticket" and "master" which are words of the common English language. However, their combination is quite fancy and original. It can not be contested that the mark "Ticketmaster" has been extensively used by the Complainant and has become internationally known for online ticketing services.
The only difference between Complainant�s trademark and Respondent�s domain name is the generic term "global." Based on general principles of confusing similarity of marks, the addition of the word "global" does not influence the result that the domain name appears to be confusingly similar to the mark "TICKETMASTER" in which the Complainant has rights.
B. Legitimate Rights or Interests in respect of the Domain Name
Although the present website under the domain name is now under construction, the Complainant has shown to the satisfaction of the Panel that the Respondent has the intention to engage in the same type of commercial activities as those of the Complainant (see also Respondent�s current "under construction" notice indicating that it will offer again the same type of ticket selling services as before). Hence, the Respondent�s interests are clearly commercial and there is no hint that the Respondent would use it for fair use without intent for commercial gain to misleadingly divert consumers. Quite to the contrary, the Panel has the impression that the Respondent is tarnishing the Complainant�s trademark. Moreover, there is no evidence submitted by the Respondent that it has been commonly known by the Domain Name, even if it had acquired no trademark or service mark rights.
Finally, the Complainant�s evidence show that the Respondent does not use the Domain Name for a bona fide offering of goods or services, since the Respondent intentionally misleads users as to the ownership of the website. Indeed, the average Internet user will be of the opinion that the "www.globalticketmaster" website has a commercial connection with the Complainant.
In the absence of any submission of the Respondent, the Panel therefore concludes that the Respondent has no rights or legitimate interests in the Domain Name.
C. Registration and Use in Bad Faith
The Respondent has not attempted to sell the Domain Name to the Complainant. However, the Panel has strong indication that the Respondent has registered and is using the Domain Name in bad faith.
When the Respondent registered the Domain Name , it must have been aware of the Complainant�s internationally well known trademark "TICKETMASTER." As it has been indicated above, the word "Ticketmaster" is fanciful and original and the average Internet user is connecting it to online ticketing services. The fact that the Respondent chose the Domain Name in question by adding the generic term "global" and by connecting the Domain Name to a website offering the same services as those of the Complainant is an indication of registration in bad faith. In the absence of any submission of the Respondent to the contrary, the Panelist is of the opinion that the Respondent has registered the Domain Name in bad faith.
By using the Domain Name as described hereinabove, the Panel has no doubt that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant�s mark as to the source, sponsorship, affiliation or endorsement of its website or of a product or service on its website (paragraph 4(b)(iv) of the Policy). Here again, in the absence of any submission of the Respondent, the Panelist is satisfied that the Respondent is also using the Domain Name in bad faith.
7. Decision
In the light of the foregoing, the Panel concludes and decides that the Domain Name shall be transferred to the Complainant.
Dr. Thomas Legler
Sole Panelist
Dated: March 26, 2004
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