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 / Matthias Nuernberger, Wuerzburg, Germany. 2. The disputed domain name and Registrar
The disputed domain name is registered with DNS:NET Internet Service GmbH (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 8, 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 disputed domain name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform disputed domain name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform disputed 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 15, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 7, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 8, 2013.
The Center appointed Alfred Meijboom as the sole panelist in this matter on March 15, 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 this end, the Complainant operates several websites. The Complainant is the owner of the United States trademark TICKETNETWORK, Registration Number 2956502, filed on April 29, 2003, and registered on May 31, 2005, for, inter alia, computer software (the “Trademark”).
The disputed domain name was registered on December 4, 2001. The disputed domain name leads to a website displaying the text “Willkommen auf . Leider sindderzeit noch keineInhalteverfugbar” (in English “welcome to . Unfortunately there is yet no content available”). 5. Parties’ Contentions A. Complainant
The Complainant argues that the disputed domain name is confusingly similar to the Trademark. According to the Complainant, the disputed domain name is “a classic example of typosquatting”. The Complainant further argues that the Respondent has no rights or legitimate interest in respect of the disputed domain name, as it is not sponsored by, or legitimately associated with the Complainant, nor has the Complainant given the Respondent permission to use the Trademark. The Respondent’s typosquatting behavior is itself evidence of bad faith. The Respondent uses the disputed domain name as a blank cybersquatting website, and as the disputed domain name is confusingly similar to the Trademark, this may lead customers to believe that the page is related to the Complainant and that the Complainant is no longer in business. This could result in monetary loss to the Complainant and may also imply an endorsement of the website by the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. The Language of proceedings
The Complaint has been submitted in English, indicating however that the language of the Registration Agreement is German. According to the Registrar, the language of the Registration Agreement is “English/German”. According to paragraph 11 of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise. As the Panel understands from the information provided by the Registrar, that the Registration Agreement is both in English and German, the Panel decides that the language of the proceedings shall be English, and that the Complaint shall be admissible. B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires that the Complainant demonstrates that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
In the present case the Complainant has sufficiently demonstrated that it has rights in the Trademark.
In paragraph III of its Complaint, the Complainant mentioned that the disputed domain name is “www.TicketN”. The Panel understands this to be a mistake, as it is clear from heading of the Complaint as well as from the Complainant’s accompanying e-mail to the Center that the Complainant means its Complaint to relate to the disputed domain name . The Panel therefore disregards this error.
As the disputed domain name is almost identical to the Trademark, differing only by a hyphen between “ticket” and “network”, which does not take away similarity between the disputed domain name and the Trademark (e.g. Fort Knox National Company v. Ekaterina Phillipova,WIPO Case No. D2004-0281), and as it is well established that gTLDs such as “.com” may be disregarded in the assessment under paragraph 4(a)(i) of the Policy (e.g. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003), the Panel finds that the disputed domain name is confusingly similar to the Trademark. The Panel therefore decides that the Complainant has satisfied paragraph 4(a)(i) of the Policy C. Rights or Legitimate Interests
Paragraph 4(a)(ii)of the Policy requires that the Complainant demonstrates that Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant has argued that the Respondent is not sponsored by or legitimately associated with the Complainant, and that it has not given the Respondent permission to use the Trademark. Although the Complainant has not further clarified this, the consensus view among UDRP panelists is that if a complainant makes a prima facie case that the respondent does not have any rights or legitimate interest in the disputed domain name, the burden of production shifts to the respondent to come forward with appropriate evidence demonstrating rights or legitimate interests in the disputed domain name. (See paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)). As the Respondent did not reply to the Complainant’s contentions, it has not demonstrated that it has any rights or legitimate interests in the disputed domain name. The Panel therefore decides that the Complainant has satisfied paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the Complainant demonstrates that the disputed domain name has been registered and is being used in bad faith.
The consensus view among UDRP panels is that generally speaking, when a domain name is registered before a trademark right is established, the registration of the disputed domain name was not in bad faith because the registrant could not have contemplated the complainant’s then non-existent right. There are exceptions to this general rule when the respondent is clearly aware of the complainant, and it is clear that the aim of the registration was to take advantage of the confusion between the disputed domain name and any potential complainant rights (paragraph 3.1 of the WIPO Overview 2.0).
The disputed domain name was registered in 2001, whereas the Complainant’s trademark was filed in 2003 and registered in 2005. The Complainant has not addressed this fact. Nor has the Complainant made a case that the Respondent was aware of the Complainant at the time of registration. In its Complaint, it argues that the Respondent’s typosquatting behavior is in itself evidence of bad faith, referring to National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini,WIPO Case No. D2002-1011. However, the factual background to this case differs from the present case in that the respondent in National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini, supra, intentionally registered a domain name for the express purpose of misdirecting unaware persons mistyping or misspelling the trademark, and intentionally directed them to a pornographic site. Also, in that case it was found that the respondent had engaged in a pattern of conduct, by registering multitudes of misspelled names as disputed domain names.
In the present case, the Complainant has failed to demonstrate to the satisfaction of the Panel that the Respondent was aware of the Complainant at the time of registration of the disputed domain name, and that it has intentionally registered the disputed domain name in order to misdirect customers searching for the Complainant. As the disputed domain name was registered several years prior to the filing date of the Trademark, it was the Complainant’s responsibility to come forth with evidence demonstrating this contention, all the more because “ticket network” may be perceived as a generic term and the disputed domain name does not misspell the Trademark, but merely adds a hyphen. The Panel therefore finds that the Complainant has failed to demonstrate that the disputed domain name was registered in bad faith.
Further, the Complainant has not demonstrated that the disputed domain name is being used in bad faith. Although passive holding does not, as such, prevent a finding of bad faith, the Panel must examine all the circumstances of the case to determine whether the Respondent is acting in bad faith (paragraph 3.2 of the WIPO Overview 2.0). In the present case, the Panel finds that the Complainant has failed to bring forward evidence justifying the conclusion that the Respondent is using the disputed domain name in bad faith. The mere fact that the disputed domain name is confusingly similar to Trademark is in itself insufficient to find that customers are misled or that the website linked to the disputed domain name is endorsed by the Complainant. This is even more so given that the designation “ticket network” may be perceived as generic. See Ticket Software LLC v. MRWFX Inc., WIPO Case No. D2011-0721.
Notwithstanding the fact that the Respondent has not responded to the Complaint, the Complainant must establish each of the three elements required by paragraph 4(a) of the Policy. Considering the above, the Panel finds that the Complainant has failed to satisfy paragraph 4(a)(iii)of the Policy. 7. Decision
For the foregoing reasons, the Complaint is denied.
Alfred Meijboom
Sole Panelist
Date: March 24, 2013
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