The Complainant is Ticket Software, LLC of South Windsor, Connecticut, United States of America (“US”), represented by Andra Mazur, US.
The Respondent is Shawn Wang of Duisburg, Germany. 2. The Domain Name and Registrar
The disputed domain name (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 disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 11, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. In addition, the Center sent an email communication to the Complainant on February 11, 2013 notifying administrative deficiencies in the Complaint. The Complainant filed an amended Complaint on February 13, 2013.
On February 13, 2013 the Center received an informal communication from the Respondent.
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. The Response was filed with the Center on February 18, 2013.
The Center appointed Gabriela Kennedy as the sole panelist in this matter on February 26, 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.
On March 5, 2013, the Panel issued Administrative Panel Order No. 1, requesting the Respondent to provide confirmation as to whether he had consented to the remedy requested by the Complainant in his Response. On March 6, 2013, the Respondent sent an email to the Center stating that he does not consent to the remedy requested by the Complainant. 4. Factual Background
The Complainant is a software company based in Connecticut, US, and hosts an online platform at the Complainant’s “” website which enables customers to purchase tickets for entertainment events through independent sellers. According to the Complainant’s “” website, the Complaint offers more than 7.5 million event tickets everyday.
According to WhoIs records for the Disputed Domain Name, the Respondent is an individual based in Duisberg, Germany. The Panel notes that the WhoIs records show that the “Creation Date” of the Disputed Domain Name July 19, 2010. The Panel further notes that the record for the Disputed Domain Name appears to have been created on May 15, 2012. While the Respondent in the Response has submitted that he registered the Disputed Domain Name on July 19, 2010. The Disputed Domain Name currently resolves to a blog which contains 2 posts (the “Website”). 5. Parties’ Contentions A. Complainant
The Complainant’s contentions can be summarised as follows:
(a) The Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights:
(i) the Complainant is the owner of US trade mark no. 2956502, registered on May 31, 2005 for TICKETNETWORK; and
(ii) the Disputed Domain Name is confusingly similar to the Complainant’s TICKETNETWORK trade mark as the only difference between the Disputed Domain Name and the Complainant’s TICKETNETWORK trade mark is the inclusion of the letter “s” at the end of the Disputed Domain Name.
(b) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name:
(i) the Respondent is not sponsored by or legitimately affiliated with the Complainant in any way; and
(ii) the Complainant has not given the Respondent permission to use the Complainant’s TICKETNETWORK trade mark in a domain name.
(c) The Disputed Domain Name was registered and is being used in bad faith:
(i) the Respondent’s typosquatting behavior is evidence of bad faith; and
(ii) the Disputed Domain Name leads customers of the Complainant to believe that the Disputed Domain Name is related to the Complainant and is driving traffic away from the Complainant’s “” website. B. Respondent
The Respondent’s contentions can be summarised as follows:-
(a) The Disputed Domain Name is not identical or confusingly similar to a trade mark or service mark in which the Complainant has rights:
(i) the Disputed Domain Name is a combination of two generic terms, i.e. “ticket” and “networks”.
(b) The Respondent has rights or legitimate interests in the Disputed Domain Name:
(i) the Respondent intends to use the Disputed Domain Name as a personal blog, which is currently under construction;
(ii) there are no posts on the Website which are associated with the Complainant’s business; and
(iii) the Respondent does not intend to divert the Complainant’s customers or to tarnish the Complainant’s TICKETNETWORK trade mark for commercial gain.
(c) The Respondent has not registered or used the Disputed Domain Name in bad faith:
(i) there is no bad faith use or registration as the Respondent registered the Disputed Domain Name for the purpose of operating a personal blog. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the burden of proof lies with the Complainant to show each of the following three elements:
a) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
b) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
c) the Disputed Domain Name has been registered and is being used by the Respondent in bad faith. A. Doctrine of Laches
Prior to addressing its findings in accordance with paragraph 4(a) of the Policy, the Panel will address the Respondent’s contention that the Complaint should be barred on the basis of the Complainant’s delay in filing the Complaint after the registration of the Disputed Domain Name. It is commonly accepted that the doctrine of laches does not apply under the Policy, and that a delay in bringing an action does not prevent a complainant from recovering a domain name (see paragraph 4.10 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)). Therefore, the Panel finds that the Complainant is not prevented from recovering the Disputed Domain Name by virtue of it bringing these proceedings almost three years after the Disputed Domain Name was registered by the Respondent (see Converse Trading, Ltd. v. Vertical Axis Inc.,WIPO Case No. D2011-1616). B. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights in respect of the TICKETNETWORK trade mark on the basis of US trade mark no. 2956502, which was filed on April 29, 2003 and registered on May 31, 2005.
It is a well-established rule that in making an enquiry as to whether a trade mark is identical or confusingly similar to a domain name, the domain extension, in this case “.com” may be disregarded (see Rohde & Schwarz GmbH & Co. KG v. Pertshire Marketing, Ltd., WIPO Case No. D2006-0762).
The Disputed Domain Name incorporates the Complainant’s TICKETNETWORK trade mark in its entirety. The only difference between the Disputed Domain Name and the Complainant's mark is the inclusion of the letter “s”. It is well established that in cases where the distinctive and prominent element of a disputed domain name is the complainant's mark and the only addition is a generic term that adds no distinctive element, such an addition does not negate the confusing similarity between the disputed domain name and the mark (see Oakley, Inc. v. Joel Wong/BlueH- INC,WIPO Case No. D2010-0100; Diageo Ireland v. Guinnessclaim,WIPO Case No. D2009-0679; and The Coca-Cola Company v. Whois Privacy Service,WIPO Case No. D2010-0088).
The Panel finds that TICKETNETWORK is the distinctive and prominent component of the Disputed Domain Name and the addition of the letter “s” does nothing to distinguish the Disputed Domain Name from the Complainant’s trade mark.
The Panel accordingly finds that the Disputed Domain Name is confusingly similar to the TICKETNETWORK trade mark in which the Complainant has rights, and that element 4(a)(i) of the Policy is satisfied. C. Rights or Legitimate Interests
Paragraph 2.1 of the WIPO Overview 2.0 states that once a complainant makes a prima facie case in respect of the lack of rights or legitimate interests of the respondent, the respondent carries the burden of proof to demonstrate it has rights or legitimate interests in the domain name. Where the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
The Complainant contends that the Respondent is not connected or associated with the Complainant’s business and is not on any other basis licensed or authorised to use its TICKETNETWORK trade mark. Accordingly, the Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Disputed Domain Name and therefore the Respondent now has the burden of demonstrating that it does possess such rights or legitimate interests.
The Panel accepts that the Complainant has not authorized the Respondent to use the TICKETNETWORK trade mark. The Panel further accepts that the Respondent has not become commonly known by the Disputed Domain Name.
The Panel notes that a respondent may be able to acquire rights or legitimate interests in a disputed domain name if it is used in connection with a purpose related to its generic or descriptive meaning (see paragraph 2.2 of WIPO Overview 2.0). However, the Respondent has not provided any evidence to show that the Disputed Domain Name is or will in the future be used in connection with a purpose related to the generic or descriptive meaning of the terms “ticket” and/or “networks”, and as at the date of this Decision, the content contained in the Website does not relate to the generic or descriptive meaning of the Disputed Domain Name.
Accordingly, the only way for the Respondent to acquire rights or legitimate interests in the Disputed Domain Name for the purposes of 4(a)(ii) of the Policy would be through use of the Disputed Domain Name for legitimate noncommercial purposes or in connection with a bona fide offering of goods or services.
According to the Response, the Respondent has been the registrant of the Disputed Domain Name since July 2010. However, as at the date of this Decision, the Disputed Domain Name resolves to a blog which only contains two posts, dated January 24, 2013 and February 16, 2013 respectively. The Panel notes that the second post was posted after the Respondent became aware of the Complaint. Further, the Respondent has not provided evidence to explain why the Disputed Domain Name was not used from July 19, 2010 (i.e. the date at which the Respondent registered the Disputed Domain Name) to January 2013. As such, in the absence of any evidence submitted by the Respondent to indicate otherwise, the Panel finds that the Website is more likely than not a recent attempt by the Respondent to create a false impression of legitimate use, when in fact the Disputed Domain Name is being held passively by the Respondent.
Accordingly, the Panel finds that there is no evidence whereby the Respondent could assert rights or legitimate interests in the Disputed Domain Name and therefore finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy in respect of the Disputed Domain Name. D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to establish that the Respondent registered and used the Disputed Domain Name in bad faith.
Evidence of bad faith includes actual or constructive notice of a well-known trade mark at the time of registration of a domain name by a respondent (see Samsonite Corporation v. Colony Holding, NAF Claim No. 94313). While the Complainant has failed to provide sufficient evidence to show that its TICKETNETWORK trade mark was well known, the Panel accepts that the Respondent knew of the Complainant’s TICKETNETWORK trade mark based on the following:
(i) the Respondent registered the Disputed Domain Name in July 2010, more than five years after the Complainant had registered the TICKETNETWORK trade mark; and
(ii) the Respondent failed to provide evidence of any actual or contemplated good faith use of the Disputed Domain Names in connection with the generic or descriptive meaning of the Disputed Domain Name.
The Panel notes that the Respondent registered the Disputed Domain Name using a privacy service. While there are legitimate purposes for using a privacy service and such use is not, of itself, indicative of bad faith, the use of a privacy service to shield the Respondent's identity can further support an inference of bad faith where there is evidence of other improper behaviour on the part of the Respondent (see Villeroy & Boch AG v. Whois Data Shield/Hong Kong Names LLC, WIPO Case No. D2008-1300 and Fifth Third Bancorp v. Secure Whois Information Service, WIPO Case No. D2006-0696).
As discussed in relation to the Respondent’s lack of rights or legitimate interests in the Disputed Domain Name, the Panel is of the view that the Website is a recent attempt by the Respondent to create a false impression of legitimate use when in fact it has been passively held for almost three years. Non-use or passive holding of the Disputed Domain Name by the Respondent, in combination with the other evidence of bad faith as discussed above, amounts to the use of the Disputed Domain Name in bad faith (see Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003).
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(iii) of the Policy in respect of the Disputed Domain Name. 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.
Gabriela Kennedy
Sole Panelist
Date: March 11, 2013
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