Complainant is SeatGeek, Inc. of New York, New York, United States of America (“United States”), represented by SafeNames Ltd., United Kingdom.
Respondent is Nash Enterprises, Inc. of Mineola, New York, United States. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 21, 2019. On February 22, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On February 22, 2019, 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” 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 Respondent of the Complaint, and the proceedings commenced on March 1, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 21, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 22, 2019.
The Center appointed Jordan S. Weinstein as the sole panelist in this matter on April 4, 2019. 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 April 18, 2019, the Center informed the parties that the Decision due date had been extended to April 25, 2019 due to exceptional circumstances. 4. Factual Background
Complainant is a New York-based company specializing in event ticket aggregation. Complainant’s trademark SEATGEEK has been registered as a trademark in the United States since November, 29, 2011, under registration number 4062477. The Disputed Domain Name was registered on June 28, 2015. Currently, the Disputed Domain Name resolves to a parked website. 5. Parties’ Contentions A. Complainant
Complainant, SeatGeek, Inc., asserts that it is a New York-based company founded in 2009, specializing in event ticket aggregation, that allows customers to browse seats available at events and purchase them. Complainant asserts that its brand SEATGEEK has been used in trade since 2009. The term SEATGEEK is derived from the two English words “seat” and “geek” which are suggestive of Complainant’s expertise.
Complainant asserts that its SEATGEEK service has been widely covered in the media, such as being profiled as “The Hottest Ticket In Mobile” by Forbes magazine, and as a finalist at the 2009 TechCrunch50 conference.
Complainant asserts that its SEATGEEK services are available on desktop computers and through a mobile app. Complainant asserts that its website, “”, is one of the most used event ticketing sites on the Internet, and its app is ranked number 33 for “Entertainment” apps on Apple devices.
Complainant asserts that it has undertaken many partnerships in order to expand its SEATGEEK brand, including partnerships with the social media app Snapchatand the transportation app Lyft. Complainant asserts that these partnerships have allowed the SEATGEEK brand to permeate many sectors, increasing its visibility and accessibility.
Complainant asserts that it has partnerships with popular professional sports teams and major sports leagues, allowing fans to access and purchase tickets.
Complainant asserts that it has established a social media presence and uses its trademark SEATGEEK to promote its services on Instagram, Facebook, Twitter and YouTube.
Complainant asserts that Respondent lacks a right or a legitimate interest in the Disputed Domain Name because Respondent has no trademark rights to the term “SEATGEEK”, no unregistered trademark rights to the term “SEATGEEK”, and no license from Complainant to use domain names featuring the SEATGEEK trademark.
Complainant asserts that Respondent has never been known by, or offered any services using, the term “SEATGEEK”; that there is no evidence that Respondentis commonly referred to as “SEATGEEK”, or that Respondent is commonly known by the Disputed Domain Name.
Complainant asserts that Respondent has made no bona fide offering of goods or services attached to the Disputed Domain Name. Complainant asserts that before it sent a cease and desist letter to Respondent, the Disputed Domain Name redirected to a domain name auction site. Complainant asserts that it received no response to the letter, but that Respondent updated the Disputed Domain Name to direct to a parked page which states that the Disputed Domain Name is for sale through an auction. Complainant asserts that, given the distinctive nature of the SEATGEEK trademark, there is no evidence of the Disputed Domain Name being used for a bona fide offering of goods or services.
Complainant asserts that the Disputed Domain Name is not a generic or descriptive term that would be used by a trader in order to attract traffic for the sale of domain names, that the term “SEATGEEK” has no relation or suggestive meaning attached to the sale of domain names, and that given the unique and distinctive nature of Complainant’s SEATGEEK mark, it is implausible that Respondent chose the Disputed Domain Name for purposes other than to exploit Complainant’s trademark to attract Internet traffic for Respondent’s own financial gain.
Complainant asserts that the Disputed Domain Name was registered and is being used in bad faith because Respondent registered and used the Disputed Domain Name for domain name auction services, of the Disputed Domain Name and others, with actual or constructive notice of Complainant’s trademark rights. Because Complainant’s US trademark registration predates the creation of the Disputed Domain Name by four years, and because of the substantial goodwill Complainant asserts its SEATGEEK trademark has acquired since 2009, Complainant asserts that it is implausible for Respondent to have had no knowledge of Complainant’s brand SEATGEEK. Furthermore, Complainant and Respondent are both based in the State of New York, and the SEATGEEK brand received considerable publicity after raising USD 62 million in funding. Complainant asserts that under the circumstances, Respondent clearly knew or should have known about Complainant’s trademark when it registered and used the Disputed Domain Name.
Complainant asserts that Respondent’s offer to sell the Disputed Domain Name at auction also establishes registration in bad faith, whether or not the offer was targeted at Complainant.
Complainant also asserts that Respondent has engaged in a pattern of bad faith conduct by its ownership of domain names which infringe upon third-party trademarks, namely , , and . These domain names redirect to “”, the same domain name auction site to which the Disputed Domain Name redirects.
Complainant asserts that Respondent’s failure to respond to Complainant’s cease and desist letter is further evidence of Respondent’s bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Applicable Policy Provisions
Paragraph 4(a) of the Policy requires Complainant to prove each of the following three elements in order to prevail in this proceeding:
(i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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.
Paragraph 4(b) of the Policy states that the following circumstances shall be evidence of the registration and use of a domain name in bad faith:
(i) Circumstances indicating that [respondent has] registered or acquired the Disputed Domain Name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the Disputed Domain Name; or
(ii) [respondent has] registered the Disputed 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 [respondent has] engaged in a pattern of such conduct; or
(iii) [respondent has] registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Disputed Domain Name, [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [its] website or other online location, by creating a likelihood of confusion with complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of [its] website or location or of a product or service on [its] website or location.
These circumstances are non-exhaustive, and a UDRP panel may consider other circumstances as constituting registration and use of a domain name in bad faith.
According to paragraph 4(c) of the Policy, a respondent may demonstrate rights in or legitimate interests to a domain name by any of the following, without limitation:
“(i) Before any notice to you of the dispute, your use of, or demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you, as an individual, business, or other organization have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.”
Where a respondent is in default, a UDRP panel may draw such inferences as it considers appropriate. Rules, paragraph 14(b). B. Findings 1) Identical or Confusingly Similar
The Panel finds that the Disputed Domain Name is confusingly similar to Complainant’s SEATGEEK registered trademark. The Panel notes that the Disputed Domain Name reproduces the SEATGEEK trademark in its entirety, adding only the generic Top-Level Domain (“gTLD”) “.nyc”. The Panel finds that the this gTLD does not prevent a finding of confusing similarity. See KPMG International Cooperative; KPMG LLP v. Sana Arif, WIPO Case No. D2014-2187 (addition of suffixes such as “.nyc”, being a gTLD, is not a distinguishing factor).
The Panel finds that Complainant has provided sufficient evidence to establish paragraph 4(a)(i) of the Policy. 2) Rights or Legitimate Interests
Complainant has made a prima facie case under paragraph 4(a)(ii) of the Policy by showing that Respondent has no trademark or unregistered rights to “seatgeek”, no license from Complainant to use the SEATGEEK trademark, and that Respondent has never been known by, commonly referred to, or made any bona fide offering of goods or services using “seatgeek” or the Disputed Domain Name.
Offering a domain name for sale, in these circumstances, is not a bona fide offering of goods or services. Nor does mere ownership of a domain name confer a right or legitimate interest on the Respondent. See, e.g., National Football League Properties, Inc. and Chargers Football Company v. One Sex Entertainment Co., a/k/a ,WIPO Case No. D2000-0118.
Finally, use of the Disputed Domain Name on a parked page providing pay-per-click revenue to the Respondent is not a legitimate, noncommercial or fair use.
Once Complainant makes its prima facie case of no rights or legitimate interests, the burden of production shifts to Respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the Disputed Domain Name. SeeWIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition(“WIPO Overview 3.0”), section 2.1. Respondent failed to come forward with allegations or evidence demonstrating either rights or legitimate interests in the Disputed Domain Name. As Respondent failed to file a Response, and failed to respond to Complainant’s cease and desist letter, the Panel may make an inference that Respondent has no rights or legitimate interests in the Disputed Domain Name. See Pavillion Agency, Inc., Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd., and Glenn Greenhouse,WIPO Case No. D2000-1221. As a result, Complainant has established paragraph 4(a)(ii) of the Policy. 3) Registered and Used in Bad Faith
The Panel finds that Complainant has provided sufficient evidence to satisfy paragraph 4(b)(ii) of the Policy, namely that Respondent has registered the Disputed Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, and that Respondent has engaged in a pattern of such conduct. Specifically, Respondent registered the domain names , , and , which correspond to the trademarks of third parties. The Panel infers that Respondent similarly has registered the Disputed Domain Name in bad faith. See Arla Foods Amba and Mejeriforeningen Danish Dairy Board v. Mohammad Alkurdi,WIPO Case No. D2017-0391.
The Panel also finds that Complainant has provided sufficient evidence to satisfy paragraph 4(b)(iv) of the Policy, namely that by using the Disputed Domain Name, Respondent intentionally intended to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website.
The mere registration of a domain name that is identical to a well-known trademark can create a presumption of bad faith. See WIPO Overview 3.0, section 3.1.4. The Panel finds Complainant has proven that its trademark is well known, certainly in the common trading area of New York. See Seatgeek, Inc. v. Sean Lankford, WIPO Case No. DCO2018-0022(citing Complainant’s “surging worldwide presence”). Registering a domain name confusingly similar or identical to a well-known trademark in order to exploit the goodwill attached to the trademark by redirecting users to the Respondent’s own website is an indication of bad faith registration.
The Panel finds that although domain name auction services may certainly be a legitimate business, using Complainant’s well-known trademark to direct Internet users to such services – especially for the auction of a domain name confusingly similar to that Trademark – is not. See Atlas Copco Aktiebolag v. A Domain Privacy / Transure Enterprise Ltd, WIPO Case No. D2010-0232.
Pay-per-click links featured on Respondent’s webpage are further evidence of the Respondent’s intent to derive commercial gain through the Disputed Domain Name. See Arla Foods Amba and Mejeriforeningen Danish Dairy Board v. Mohammad Alkurdi,WIPO Case No. D2017-0391.
From Respondent’s failure to reply to Complainant’s cease and desist letter prior to commencing the proceedings, the Panel also infers bad faith on the part of Respondent. See Facebook, Inc. and Instagram, LLC v. C W / c w, c w,WIPO Case No. D2018-1159.
Together with Respondent’s failure to respond to the Complaint, these facts and inferences evidence the registration and use of the Disputed Domain Name in bad faith as outlined in paragraph 4(b)(iv) of the Policy. 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 Complainant.
Jordan S. Weinstein
Sole Panelist
Date: April 25, 2019
Full & Egal Universal Law Academy