The Complainant is Ticket Software, LLC of South Windsor, Connecticut, United States of America, represented internally.
The Respondent is Domain Manager of Boynton Beach, Florida, United States of America, represented internally. 2. The Domain Name and Registrar
The disputed domain name is registered with Moniker Online Services, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 30, 2013. On January 31, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 6, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on February 13, 2013.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 the Respondent of the Complaint, and the proceedings commenced on February 18, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 10, 2013. On March 6, 2013, the Respondent requested to extend the Response due date. On the same day, the Center informed the parties that the Response due date had been extended to March 13, 2013. The Response was filed with the Center on March 12, 2013.
The Center appointed Andrew J. Park as the sole panelist in this matter on March 25, 2013. 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
The Complainant hosts an online marketplace for event tickets to concert, sport, and theater events in the United States of America (U.S.) and globally. Through its infrastructure, the Complainant connects buyers and sellers with ticket inventory listings to various events worldwide. The network of websites include: TicketNetwork Point-of-Sale, TicketNetwork Online Exchange, and TicketNetwork TicketBoard Pro. The Complainant is the registrant of the mark TICKETNETWORK under U.S. Reg. No. 2966502, registered on May 31, 2005 and claiming goods and services related to computer software and providing an online marketplace for buyers and sellers of entertainment tickets.
The Respondent provides goods and services, though the exact nature of same is not known from the record. The Respondent has owned registered domain names that include the words “ticker” and “network” prior to the filing date of the within Complaint. These registered domain names include the following:
Domain Name: Registration Date:
November 7, 2002
March 3, 2000
March 4, 2000
April 20, 1997
June 21, 1997
November 1, 1997
November 12, 1998
December 13, 1999
The Respondent has over 100 domain name registrations with the word “ticker” or “network” that have been in use prior to the filing date of the Complaint. 5. Parties’ Contentions A. Complainant
The Complainant contends that it owns rights in the TICKETNETWORK mark and that the disputed domain name is identical or confusingly similar to its mark.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant contends that the Respondent is not affiliated with the Complainant whatsoever and that the Complainant has not given the Respondent permission to use the Complainant’s TICKETNETWORK mark in a domain name.
The Complainant further contends that the Respondent has registered and uses the disputed domain name in bad faith on the grounds that it is merely the intentional misspelling of its mark TICKETNETWORK by just one letter, all in effort by the Respondent to redirect internet traffic to its website, a repository for links to various services including the sale of entertainment and sporting tickets, similar to the Complainant’s services.
For these reasons, the Complainant requests that the disputed domain name be transferred. B. Respondent
The Respondent claims that the Complainant’s TICKETNETWORK mark and the disputed domain name are not identical nor confusingly similar; that the disputed domain name was registered prior to the trademark/service mark registration of the Complainant’s mark; and that the words “ticker” and “network” are generic words. 6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth three requirements which have to be met for the Panel to order the transfer of the disputed domain name to the Complainant. Those requirements are that: (1) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith.
The Panel has to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable, pursuant to paragraph 15(a) of said Rules. A. Identical or Confusingly Similar
In the present case, the Panel finds that the Complainant has established that the Complainant owns rights in the TICKETNETWORK mark.
First, the TICKETNETWORK mark was used by the Complainant since at least March 31, 1996, all as indicated in the U.S. registration details submitted by the Complainant and that it was used specifically in connection with the goods/services that are directly related to its core business.
Second, the Complainant owns a federally registered trademark/service mark for the TICKETNETWORK mark in the U.S..
Finally, the disputed domain name and the Complainant’s TICKETNETWORK mark only differ in terms of a single letter and are therefore nearly identical.
Accordingly, the Panel finds the disputed domain name to be confusingly similar to the Complainant’s TICKETNETWORK mark, and therefore concludes that the Complainant has satisfied is burden of proof under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name.
According to paragraph 4(c) of the Policy, the following circumstances, if proved, demonstrate a respondent’s rights or legitimate interests in a domain name:
(i) The respondent used or demonstrably prepared to use the domain name or corresponding name in connection with a bona fide offering of goods or services prior to notice of the dispute; or
(ii) The respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if it has not acquired trademark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the complainant’s marks.
A respondent may elect to show rights and legitimate interests, non-exhaustively, by producing proof under paragraphs 4(c)(i)-(iii) of the Policy.
First, the Respondent claims that it has an interest in the disputed domain name because “Ticker Network” is a common descriptive term referring to “[a]ny of various devices that receive and display similar information, such as stock market quotations, electronically” and uses the disputed domain name “to post advertising links, which relate to stocks”.
The Respondent also claimed that it owns over 100 domain name registrations that contain the words “ticker” or “network,” all of which were allegedly registered prior to the filing date of the Complaint.
Conspicuously, however, the Respondent, though it had ample opportunity to do so, did not provide any evidence of its other related domain name registrations, nor did it offer any information regarding the nature or purpose of said websites. These factors suggest that the Respondent was not and is not engaging in a bona fide offering of goods/services under the disputed domain name, nor is otherwise engaging in legitimate business activities.
Second, as to paragraph 4(c)(ii) of the Policy, the Respondent in its Response to the Complaint does not assert that it is commonly known by the disputed domain name and there is no evidence in the record to indicate such.
Finally, as to paragraph 4(c)(iii) of the Policy, in view of the Respondent’s claim, as mentioned above, that it owns over 100 domain name registrations that contain the word “ticker” or “network”, together with the conspicuous absence of any claim, let alone proof offered by the Respondent concerning its bona fide offering of goods/services under the disputed domain name, this Panel is of the position that the Respondent is not engaged in the activity set forth in this paragraph 4(c)(iii) of the Policy.
For these reasons, the Respondent is not found to have a right or legitimate interest in the disputed domain name, as this legal concept is understood to mean pursuant to paragraph 4(c) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances that evidence registration and use of a domain name in bad faith. Any one of the following conduct is sufficient to support a finding of bad faith:
(i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 your website or location or of a product or service on your website or location.
When considering (a) the dearth of information regarding the nature of the Respondent’s business activities, in general, and specifically in connection with the disputed domain name, together with (b) information the Complainant provided that the disputed domain name is a “repository for links to various services including the sale of entertainment and sporting tickets similar to Complainant”, and (c) the fact that the Respondent did not dispute such claim, all show that the Respondent used the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. Thus, the Panel finds that there is convincing evidence that the Respondent registered the disputed domain name in bad faith, namely for the purposes of disrupting the business of the Complainant.
Finally, it is noted that the Respondent claimed that “the fact that Complainant has waited eight years to file this Complaint is an indication that Complainant did not truly believe Respondent’s registration of the Disputed Domain violated the Policy”. The Panel sees no correlation between the issue of when the Complainant considered the Respondent’s registration of the disputed domain name to be in violation of the Policy and its “true” belief as to whether it is or is not a violation. Further, the issue of when the Complainant considered the Respondent’s registration of the disputed domain name to be a violation is not germane to the outcome of this case, particularly in the context raised by the Respondent.
For the record, one instance where the Complainant’s knowledge of the Respondent’s registration could conceivably be considered is if the Respondent had raised a laches defense. In this case, however, the Respondent clearly did not raise such a defense. Even if it had, most UDRP panelists have not found laches defenses to be generally applicable in UDRP disputes. See e.g. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 4.10 and cases cited therein. Notwithstanding, it is noted that although the merits of a laches defense in a UDRP proceeding have been debated and there are opposing views on the subject, this Panel believes that under the current provisions of the Policy, Rules, and Supplemental Rules, particularly the lack of certain basic procedural rules, it would be difficult for the concept of laches to be properly and fairly implemented. For this reason, this Panel sees no persuasive merit, under the current Policy and Rules, in recognizing, let alone accepting, such defense.
In conclusion, the Panel finds that Complainant has shown that the disputed domain name has been registered and is being used in bad faith by Respondent. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Andrew J. Park
Sole Panelist
Date: April 17, 2013
Full & Egal Universal Law Academy