The Complainant is The Lumineers, LLC of Seattle, Washington, United States of America (“United States”), represented by Creative Law Network, LLC, United States.
The Respondent is Andrey Weprikov of Kiev, Ukraine. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with EvoPlus Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 8, 2016. On December 9, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 12, 2016, 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, an amended Complaint was filed on December 14, 2016.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was January 5, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 6, 2017.
The Center appointed Ian Lowe as the sole panelist in this matter on January 17, 2017. 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 is a musical group based in Denver, Colorado, United States, that has been extremely successful since it was formed in 2009. It has had a number one album on Billboard, has performed hundreds of shows for millions of fans around the world, has been nominated for two Grammy awards, has appeared on network and cable television on multiple occasions, and has sold millions of albums in digital and hardcopy formats. The Lumineers has planned a tour comprising many live performances which are scheduled to take place in 2017.
The Complainant is the registered proprietor of a large number of trademark registrations around the world in respect of THE LUMINEERS (the “Mark”), including United States trademark registration number 4406893 registered on September 24, 2013 with first use in commerce in 2009, as well as International trademark registration number 1160926 registered on April 16, 2013, designating the European Union.
The Domain Name was registered on September 30, 2016. It resolves to a webpage providing biographical information about the members of the Complainant, displays the cover image from the Complainant’s most recent album and, with a list of the Complainant's planned live performances in 2017, offers for sale tickets to those performances. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to the Mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that:
(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. Identical or Confusingly Similar
The Complainant has uncontested rights in the Mark, both by virtue of its various trademark registrations around the world and as a result of the goodwill and reputation acquired through its use of the Mark over several years. Ignoring the generic Top-Level Domain (“gTLD”) “.com”, the Domain Name comprises the entirety of the Mark together only with the generic term “tour” and the year “2017”. In the view of the Panel, this does not detract from the confusing similarity of the Domain Name to the Mark, particularly in light of the use to which the Respondent has put the Domain Name and the fact that the Complainant has organised a well-publicised tour taking place in 2017. Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights. B. Rights or Legitimate Interests
The Complainant has made out a strong prima facie case that the Respondent has no rights or legitimate interests in respect of the Domain Name. The use made of the Domain Name by the Respondent for a website featuring details of the Complainant group and offering for sale tickets to the Complainant’s upcoming live performances does not indicate any such rights. The Respondent is not authorised by the Complainant to use the Mark for a domain name and the Respondent has chosen not to respond to the Complaint or to counter the prima facie case established by the Complainant. The Panel further notes that there is no statement on the Respondent’s website indicating any relationship with the Complainant, and it is therefore not clear whether the tickets for sale are genuine tickets for the Complainant’s performances. In the circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith
By its very nature, the Respondent obviously had in mind the Complainant and its rights in the name THE LUMINEERS when it registered the Domain Name. The website to which the Domain Name resolves is dedicated to the Complainant’s live performance tour and the Domain Name is clearly intended to take advantage of the renown of the Complainant and to divert Internet users to the website for commercial gain through selling or purporting to sell tickets for the Complainant’s concerts. The Panel considers that visitors to the website are very likely to believe that they have reached an official website operated or controlled by the Complainant, when they have not. The circumstances of registration and the use to which the Domain Name has been put represent paradigm bad faith registration and use with a view to financial gain.
Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith. 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 Domain Name be transferred to the Complainant.
Ian Lowe
Sole Panelist
Date: January 25, 2017
Full & Egal Universal Law Academy