WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. D LLC
Case No. D2008-0665
1. The Parties
Complainant is Ticketmaster Corporation, Los Angeles, California, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, LLP, United States of America.
Respondent is D LLC, North Branford, Connecticut, United States of America.
2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with GoD, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 28, 2008. On April 29, 2008, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name at issue. On April 29, 2008, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 5, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 25, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 27, 2008.
The Center appointed Dana Haviland as the sole panelist in this matter on June 4, 2008. 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.
4. Factual Background
Complainant is the owner of four United States trademark registrations for the word Ticketmaster (the “TICKETMASTER Mark” or the “Mark”): No. 1,746,016 dated January 12, 1993; No. 2,464,562 dated June 26, 2001; No. 2,643,508 dated October 29, 2002; and No. 2,742,550 dated July 29, 2003. Complaint, Annex D. Complainant also owns numerous foreign trademark registrations for the TICKETMASTER Mark, with dates going back as far as 1991 and all predating the registration of the Domain Name. Complaint, Annex E.
Respondent registered the Domain Name , on August 27, 2007.
The Domain Name leads to a web site selling tickets for sporting events, musical concerts and theaters, in direct competition with Complainant. Complaint, Annex F.
5. Parties’ Contentions
A. Complainant
Complainant Ticketmaster Corporation asserts that it is a global leader in live event ticket sales, selling tickets to more than 350,000 entertainment and sporting events each year, including professional sports events, the performance arts, musical concerts, plays, and other events. According to the Complaint, in 2006, Complainant sold over 128 million tickets valued at over 1 billion USD through a network of approximately 6,500 retail ticket center outlets located in cities in the United States, Australia, Canada, the United Kingdom, Ireland, Northern Europe and Mexico, more than 20 worldwide telephone call centers, its “” web site and other Ticketmaster-branded Internet sites.
Complainant alleges that as a result of its continuous and extensive marketing and sales, and the resulting widespread use of its services, the public has come to recognize and associate the TICKETMASTER Mark with Complainant and that consequently, TICKETMASTER is a well-known and famous service mark.
Complainant contends that it is the owner of registered and common law trademark rights in the mark TICKETMASTER (the “TICKETMASTER Mark” or the “Mark”), used in connection with its providing of ticketing services for sporting events, musical concerts and other entertainment events around the world. It provides evidence of its ownership of four United States trademark registrations and numerous trademark registrations in many other countries for its TICKETMASTER Mark, all predating the registration of the Domain Names. Complaint, Annexes D and E. Complainant asserts that the Domain Name is confusingly similar to the Mark, because it incorporates the TICKETMASTER Mark in its entirety, adding only the letter “f” to create a slight typographical variation on Complainant’s Mark.
Complainant alleges that Respondent has no rights or legitimate interests in the Domain Name. Complainant states that it has not licensed or otherwise permitted Respondent to use the TICKETMASTER Mark or to apply for or use any domain name incorporating the Mark and that Respondent is not commonly known by the Domain Name. To the best of Complainant’s knowledge, Respondent has not acquired or registered any trademark or service mark rights to the Domain Name.
Complainant alleges that the Domain Name has been registered and is being used in bad faith. Complainant asserts that Respondent had constructive notice and probable actual knowledge of Ticketmaster’s prior rights in its well-known TICKETMASTER Mark, and that Respondent obtained the Domain Name to intentionally attract Internet users to Respondent’s web site by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s web site. Complainant alleges that the Domain Name redirects the Internet user to a web site that offers ticketing services for sporting events, concerts and theaters, in direct competition with Complainant. Complaint, Annex F.
B. Respondent
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Under the Policy, in order to prevail, a complainant must prove the following three elements of a claim for transfer or cancellation of a respondent’s domain name:
(i) that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interests in the disputed domain name; and
(iii) that the respondent’s domain name has been registered and is being used in bad faith.
Policy, paragraph 4(a).
Complainant has produced evidence of its registration rights in the TICKETMASTER Mark. Complaint, Annexes D and E. A number of previous cases under the Policy have recognized Complainant’s rights in and to the TICKETMASTER Mark. See, e.g., Ticketmaster Corporation v. Dmitri Prem,WIPO Case No. D2000-1550 (“the TICKETMASTER service mark is a strong, arbitrary and well known trade mark applied to ticket agency services offered through ticketing outlets and on-line web sites to provide tickets to sporting contests, musical concerts and other entertainment events”); Ticketmaster Corporation v. WhoisGuard Protected,WIPO Case No. D2008-0350, Ticketmaster Corporation v. Darcy Andrade,WIPO Case No. D2008-0439.
The Domain Name incorporates the Complainant’s widely-known trademark in its entirety, inserting only the letter “f” and adding the “.com” suffix to form the Domain Name, in a clear example of typosquatting, plainly designed to lead a customer who misspells or mistypes TICKETMASTER to Respondent’s competing web site. The Domain Name is thus confusingly similar to Complainant’s Mark. See Ticketmaster, Inc., v. C&D International, Ltd.,WIPO Case No. D2003-0397 (finding likelihood of confusion between and and ); Ticketmaster Corporation v. Woofer Smith,WIPO Case No. D2003-0346 (; ; and ); Ticketmaster Corporation v. Dotsan, WIPO Case No. D2002-0167 ( and ); Ticketmaster Corporation v. Polanski, WIPO Case No. D2002-0166 (); Ticketmaster Corporation v. Iskra Service,WIPO Case No. D2002-0165 (). As stated in AltaVista Company v. OFEZ et al.,WIPO Case No. D2000-1160, “A misspelling or typographical variation of a well known mark is deemed to be ‘confusingly similar’ to the Complainant’s mark in violation of paragraph 4(a)(i) of the UDRP”.
The Panel finds that the Complainant has thus satisfied the first element of its claim under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
In this case, Complainant asserts Respondent has not been licensed to use Complainant’s trademark, Respondent has not been commonly known by the Domain Name, and Respondent has not made any use of the Domain Name for either a bona fide offering of goods and services or some other noncommercial or fair use under paragraph 4(c) of the Policy. Complainant contends that Respondent therefore has no rights to or legitimate interests in the Domain Name, as required by paragraph 4(a)(ii) of the Policy. Complainant has made out a prima facie case with respect to paragraph 4(a)(ii) and shifted the burden of production to Respondent to show that it has a particular right or legitimate interest in the Domain Name under paragraphs 4(a)(ii) and 4(c).
It is difficult for a complainant to prove the negative that a respondent does not have any rights or legitimate interests in a domain name in dispute. Starwood Hotels & Resorts Worldwide, Inc., et al., v. KerryWeb Enterprise, Inc., et al.,WIPO Case No. D2007-1150; CPP, Inc. v. Virtual Sky,WIPO Case No. D2006-0201. Thus, “where Complainant has asserted that Respondent has no rights or legitimate interests with respect to the domain name it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is uniquely within the knowledge and control of the respondent”. Diebold, Incorporated v. Paul Terwilliger,WIPO Case No. D2003-0416. Respondent has not asserted any right or interest in the Domain Name in this case and has presented no evidence in opposition to Complainant’s assertions in this regard.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that Complainant has thus shown the second element of its claim, pursuant to paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that Complainant establish both bad faith registration and bad faith use of the Domain Name by Respondent. See World Wrestling Federation Entertainment, Inc. v. Michael Bosman, WIPO Case No. D1999-0001; Shaw Industries Group, Inc. and Columbia Insurance Company v. DomainsByProxy, Inc. and Patti Casey, WIPO Case No. D2007-0555; Patrick Pawlicki v. The Plastiform Company, WIPO Case No. D2007-1206.
Paragraph 4(b) of the Policy sets out, by way of example, four circumstances, each of which, if proven, shall be evidence of the registration and use of the domain name in bad faith for the purpose of paragraph 4 (a)(iii) above:
(i) circumstances indicating that the registrant has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the registrant’s documented out-of-pocket costs directly related to the domain name; or
(ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or
(iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location.
Complainant contends that Respondent has registered and is using the Domain Name in bad faith, alleging facts relevant to a claim pursuant to paragraph 4(b)(iv) of the Policy.
The evidence of Respondent’s registration of the Domain Name incorporating Complainant’s widely-known TICKETMASTER Mark and Respondent’s use of the Domain Name for ticket sales in direct competition with the Complainant’s ticketing service, together with Respondent’s failure to respond or produce any contrary evidence, supports an inference that by using the Domain Name, Respondent has intentionally attempted to attract Internet users to its web site for commercial gain by creating a likelihood of confusion with Complainant’s Mark. The evidence is thus sufficient to establish Respondent’s bad faith registration and use of the Domain Name pursuant to paragraph 4(b)(iv) of the Policy. See Asian World of Martial Arts Inc. v. Texas International Property Associates,WIPO Case No. D2007-1415 (use of trademark in domain for pay-per-click landing page that included links to competitors of complainant was bad faith registration and use under paragraph 4(b)(iv) of the Policy).
The Panel finds that Complainant has shown bad faith registration and use of the Domain Name, satisfying the third element of its claim in accordance with paragraph 4(a)(iii) of the Policy.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Dana Haviland
Sole Panelist
Dated: June 18, 2008
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