The Complainant is The Lumineers, LLC, United States of America (“United States”), represented by Creative Law Network, LLC, United States.
The Respondent is Ansh Shishir Ahmed, Bing Event, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 31, 2019. On November 4, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 5, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 7, 2019, providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on November 11, 2019. The Center verified that the Complaint, together with the amendment to 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 the Respondent of the Complaint, and the proceedings commenced on November 13, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 3, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 6, 2019. The Center appointed W. Scott Blackmer as the sole panelist in this matter on December 11, 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. 4. Factual Background The Complainant is an American folk rock band whose founding members have been writing music and performing together since 2005. The band is currently based in Denver, Colorado, United States and is organized for business purposes as a Colorado limited liability company. The Complainant is a popular touring band in the United States and other countries. Its first album, “The Lumineers”, released in 2012, went “triple platinum” (over three million copies sold) in the United States and Canada and platinum in the United Kingdom and Ireland. Its second album, released in 2016, is currently certified platinum in the United States. A third album was released in September 2019, and the band announced an extended North American tour to begin in January 2020. The Complainant 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 hard-copy formats. Tickets for the Complainant’s concert tours are sold through the Complainant’s website at “www.thelumineers.com” and several other channels. The following notice appears on the Complainant’s website: “We are happy for tickets to be resold at face value through official resale channels. Twickets, Ticketmaster Fan-to-Fan Exchange, AXS Official Resale, Eventim Fansale, See Fan-to-Fan. Please do not sell tickets for profit through Secondary ticketing sites like Viagogo or StubHub. To do so may result in your ticket being cancelled without refund and the buyer not gaining entry into the event.” The Complainant holds registered standard-character trademarks for THE LUMINEERS in the United States and other countries, including United States Trademark Registration Number 4406896 (registered September 24, 2013) and International Trademark Number 1160926 (April 16, 2013) (WIPO, designated for the European Union). The Registrar lists the registrant of the Domain Name as the Respondent Ansh Shishir Ahmed, of the organization “Bing Event”, with no genuine street address given (the registrant simply repeated “New York New York” in that field) in New York, New York, United States. No such organization appears in the online database operated by the New York State Department of State. The contact email given for the registrant uses the domain name <4alphapro.com>, which is registered through a domain privacy service and resolves only to a parking page with pay-per-click (“PPC”) advertising links. According to the Registrar, the Respondent registered or acquired the Domain Name on August 2, 2019. The Domain Name resolves to a website (the “Respondent’s website”) headed “The Lumineers Tour 2020”, featuring a photo of the band and advertising tickets for the Complainant’s 2020 North American tour “in support of their upcoming album III, due out on Sept. 13.” The website includes a detailed schedule of the tour concerts, with a “get tickets” link for each performance. A “Disclaimer” page on the Respondent’s website does not refer to the Complainant but rather disclaims responsibility for the accuracy of any information published on the site or linked from the site and explains as follows: “We display resale event tickets. Prices may be above or below face value. We are not affiliated with any venue.” The “About Us” page does not identify the site operator but says only this: “Our aim is to help people about the The Lumineers Tour 2020 Dates, Schedule .Where To buy Tickets, How To buy Tickets etc .We Don’t Affiliate With The Lumineers Tour 2020 .This site is made only informative & descriptive purposes.” The copyright notice at the bottom of every page, however, suggests affiliation with The Lumineers Tour: “Copyright © 2019 The Lumineers Tour 2020.” The website’s Privacy Policy, under “Who we are”, entirely sidesteps the question of who is responsible for the website, saying only, “Our website address is: https://lumineers-tour.com.” 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its registered trademark THE LUMINEERS and that the Respondent has no permission to use the mark and otherwise lacks rights or legitimate interests in the Domain Name. The Complainant points to the fame associated with the mark and the Respondent’s obvious familiarity with the Complainant and its mark, as the Respondent created a website associated with the Domain Name that features a copyrighted image of the band and information about the Complainant, which is used to resell tickets to the Complainant’s concerts. The Complainant argues that the Respondent uses the Domain Name to confuse Internet users as to source or affiliation and misdirect them for commercial gain, encouraging them to purchase concert tickets from resellers in secondary markets, some of which operate illegally and divert legitimate customers. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following: (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. Under paragraph 15(a) of the Rules, “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. A. Identical or Confusingly Similar The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7. The Domain Name incorporates the coined term in the Complainant’s mark, LUMINEERS, and adds the dictionary word “tour”, which does not avoid confusion. The Panel finds the Domain Name confusingly similar to the Complainant’s mark. As in most cases, the generic Top-Level Domain (“gTLD”) “.com” is disregarded. Id., section 1.7. The Panel finds, therefore, that the Complainant has established the first element of the Complaint. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the Respondents may establish rights or legitimate interests in the Domain Name, by demonstrating any of the following: (i) before any notice to it of the dispute, the Respondent’s 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) that the Respondent has been commonly known by the Domain Name, even if it has acquired no trademark or service mark 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 trademark or service mark at issue. Since a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. It is possible for a domain name registrant to claim nominative fair use of a performing group’s name in a domain name used for either a noncommercial fan site or for criticism (see id., sections 2.7,, 2.6). However, the Respondent’s website is a commercial website primarily aimed at reselling concert tickets, not simply furnishing information about the Complainant. A reseller claiming nominative fair use would have to meet the standards articulated in cases such as Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903; see WIPO Overview 3.0, section 2.8. One of the principal tests for nominative fair use in these decisions is that the site associated with the disputed domain name “must accurately and prominently disclose the registrant’s relationship with the trademark holder”, and the Respondent’s website fails that test. As detailed above, the website operator is not named, some of the notices and content misleadingly suggest an affiliation with the Complainant, and other content labelled “About Us”, “Disclaimer”, and “Who We Are” actually avoids identifying or disclaiming a relationship with the Complainant. The Complainant in this proceeding makes a prima facie case with evidence of trademark rights, confusing similarity, lack of permissive use, and commercial use by the Respondent without proper identification of the website operator and its relationship to the Complainant. The Respondent has not come forward with evidence of rights or legitimate interests, and none are evident on this record. Moreover, the Domain Name carries a risk of implied affiliation. See WIPO Overview 3.0, section 2.5.1. Accordingly, the Panel concludes that the Complainant has established the second element of the Complaint. C. Registered and Used in Bad Faith The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following suggested by the Complainant (in which “you” refers to the registrant of the domain name): “(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 web site or location or of a product or service on your web site or location.” The Respondent was clearly aware of the Complainant and designed a website to sell tickets to the Complainant’s concerts. As discussed above, the Respondent could lay no claim to nominative fair use as an intermediary for ticket resellers for the Complainant’s upcoming concert tour, because the Respondent took pains to obscure its identity and engender confusion about its affiliation with the Complainant. As a result, the Respondent’s conduct falls within the meaning of the Policy, paragraph 4(b)(iv) as an example of intentional misdirection for commercial gain. The Panel concludes that the Complainant has established the third element of the Complaint, 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,
Sole Panelist
Date: December 16, 2019
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