The Complainant is Seatgeek, Inc. of New York, United States of America (“United States”), represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
The Respondent is Lokesh Kumar of Westmead, New South Wales, Australia. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with Synergy Wholesale Pty Ltd (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 27, 2018. On June 28, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 29, 2018, 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.
The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the .au Dispute Resolution Policy (the “Policy” or “.auDRP”), the Rules for .au Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au 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 July 11, 2018. In accordance with the Rules, paragraph 5(a), the due date for Response was July 31, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 1, 2018.
The Center appointed John Swinson as the sole panelist in this matter on August 8, 2018. 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 Seatgeek, Inc. of the United States. According to the Complaint, the Complainant is a privately-held, venture capital backed media and entertainment company that specializes in ticket search and price forecasting services, with its headquarters located in New York. The Complainant was incorporated in 2009, and has grown substantially since that time. The Complainant has provided evidence of a number of awards it has received since its incorporation.
According to the Complaint, the Complainant owns of multiple trade marks registered across various jurisdictions globally. The Complainant has provided evidence of a few such trade mark registrations, the earliest of which being United States registered trade mark number 4062477 for SEATGEEK, filed on December 13, 2010 and registered on November 29, 2011 (the “Trade Mark”).
The Complainant operates its web-based platform at the domain name .
The Respondent is Lokesh Kumar, an individual residing in Australia. The Respondent did not file a Response, and consequently little information is known about the Respondent.
According to the Complaint, the Disputed Domain Name was registered in 2016. This conflicts with the registration date provided by the Registrar in response to the Center’s request for registrar verification in connection with the Disputed Domain Name, being September 13, 2014. As the Complainant has not provided any evidence to support its submitted registration date (or date of acquisition by the Respondent), the Panel will proceed on the basis that the Disputed Domain Name was registered by the Respondent on the date provided by the Registrar.
At present, there is no active website associated with the Disputed Domain Name. According to the Complaint, the Disputed Domain Name previously resolved to a parking page. 5. Parties’ Contentions A. Complainant
The Complainant makes the following contentions.
Identical or Confusingly Similar
The Trade Mark is recognizable within the Disputed Domain Name. By applying the test for identity or confusing similarity, which requires a visual, phonetic and conceptual comparison of both the Trade Mark and the Disputed Domain Name, the Trade Mark and the Disputed Domain Name are undoubtedly identical or confusingly similar.
Rights or Legitimate Interests
The Respondent lacks rights or legitimate interests in the Disputed Domain Name. The Respondent is not using the Disputed Domain Name or associated website for any legitimate purpose. At the time the Complaint was filed, the Disputed Domain Name redirects to a registrar parking page.
Further, the Respondent could not make any legitimate use of the Disputed Domain Name given the Respondent has not been licensed by the Complainant or otherwise authorized to use the Trade Mark.
The Respondent is not commonly known by the Disputed Domain Name. The WhoIs information associated with the Disputed Domain Name identifies the Respondent as Lokesh Kumar.
Registered or Used in Bad Faith
The Complainant submits that the Respondent would have had sufficient knowledge of the Complainant’s rights at the time he registered the Disputed Domain Name. The Complainant has spent considerable time and resources to ensure the Trade Mark has become a globally recognised brand. The Complainant’s web−based platform is the largest repository of live event tickets on the Internet. A cursory Internet search would have disclosed the Trade Mark and its extensive use by the Complainant.
The Complainant’s growth and popularity has attracted the attention of several notable organizations and individuals within the sports and entertainment industry, leading to some major investments and partnerships. Each of these events has been heavily publicized and further increased the global recognition of the Trade Mark.
Even if the Respondent resides in Australia, it is highly unlikely that the Respondent was unaware of the Complainant’s brand at the time he registered the Disputed Domain Name, as the Complainant already had a substantial reputation in Australia at that time.
The Disputed Domain Name is neither generic nor descriptive. This reinforces the Respondent’s lack of good faith when registering the Disputed Domain Name. It is likely the average Internet user will visit the Disputed Domain Name with the expectation that they will be redirected to a website operated or authorized by, or connected with, the Complainant.
Further, the Complainant submits that the Respondent’s passive holding of the Disputed Domain Name amounts to bad faith use. The Respondent’s registration the Disputed Domain Name which is identical to the Trade Mark is detrimental to the reputation and business of the Complainant, who seeks to expand further into the Australian market following its acquisition of Australian owned ticketing solution company, TicketServ, last year.
Also, the Respondent has registered multiple domain names corresponding to third party trade marks, which indicates that the Respondent’s primary motivation was to disrupt in some way. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Name is identical or confusingly similar to a name, trade mark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered or has subsequently been used in bad faith.
The onus of proving these elements remains on the Complainant even though Respondent has not filed a Response.
The Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyP,WIPO Case No. D2013-2059).1 However, the Panel may draw appropriate inferences from the Respondent’s default. A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to a name, trade mark or service mark in which the Complainant has rights.
The Disputed Domain Name is identical to the Trade Mark. No additional words have been added. The Complainant succeeds on the first element of the Policy. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Panel finds that the Complainant has made out a prima facie case. This finding is based on the following:
- The Respondent is not using the Disputed Domain Name in connection with a bona fide offering of goods or services, nor has it made a legitimate non-commercial or fair use of the Disputed Domain Name. There is no active website associated with the Disputed Domain Name. The Respondent’s passive holding does not confer rights or legitimate interests.
- The Complainant has not licensed or otherwise authorised the Respondent to use the Disputed Domain Name.
- The Respondent has not been commonly known by the Disputed Domain Name. According to the WhoIs record associated with the Disputed Domain Name, the Respondent is known as Lokesh Kumar.
The Respondent had the opportunity to demonstrate his rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy. C. Registered or Subsequently Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Disputed Domain Name has been registered or subsequently used in bad faith. While the Policy sets out instances of bad faith registration and use, these circumstances are not exhaustive.
The Complainant has owned registered rights in the Trade Mark since November 29, 2011. According to information provided by the Registrar, the Disputed Domain Name was registered on September 13, 2014, some years after the Complainant obtained such rights.
Despite the fact that Complainant is based in the United States, and the Respondent appears to reside in Australia, the Panel is satisfied that the Respondent likely had knowledge of the Complainant and the Trade Mark at the time he registered the Disputed Domain Name, and registered the Disputed Domain Name in bad faith, to take advantage of the goodwill and reputation of the Trade Mark. This finding is based on the following:
- At the time the Respondent registered the Disputed Domain Name, the Complainant had already been operating (with registered Trade Mark rights) for several years and had gained significant media attention during that time, including for securing investment from celebrity Ashton Kutcher in 2011, and for raising a USD 35 million Series B round in August 2014. Notably, the Respondent registered the Disputed Domain Name only one month following this round of fundraising.
- The Trade Mark is unique and distinctive. The Panel considers it highly unlikely that the Respondent registered the Disputed Domain Name, which is identical to the Trade Mark, without prior knowledge of the Trade Mark or the Complainant.
- The Respondent appears to have engaged in a pattern of conduct of registering trade mark abusive domain names. The Complainant has identified a number of “.” domain names registered by the Respondent which are identical to famous third-party trade marks. Each of these domain names is associated either with an inactive website or a registrar parking page.
The Respondent did not file a Response, or provide any evidence of registration in good faith.
Based on this evidence, the Panel finds that the Respondent registered the Disputed Domain Name in bad faith, to take advantage of the goodwill and reputation of the Trade Mark, or to disrupt the business or activities of the Complainant (which is evidence of bad faith registration and use under paragraph 4(b)(iii) of the Policy).
In the absence of a Response and any evidence to the contrary, the Panel finds that the Disputed Domain name was registered in bad faith. The Complainant succeeds on the third element of the Policy. 7. Decision
For all 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.
John Swinson
Sole Panelist
Date: August 14, 2018
1 1. The Panel notes that the Policy is largely based on the Uniform Domain Name Dispute Resolution Policy (“UDRP”), and accordingly the Panel will refer to its jurisprudence where instructive.
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