WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. Woofer Smith
Case No. D2003-0346
1. The Parties
The Complainant is Ticketmaster Corporation, c/o Brad Serwin, Vice President and General Counsel, of Los Angeles, California, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson of Chicago, Illinois, United States of America.
The Respondent is Woofer Smith, of Houston, Texas, United States of America.
2. The Domain Names and Registrar
The disputed domain names, which are at issue, are as follows: <ticketsmasters.com> <wwwticketmasters.com> and <wwwticketsmaster.com> (all of which are hereinafter collectively referred to as the "Domain Names").
The Domain Names are registered with Go Daddy Software, Inc. "godaddy.com", located in Scottsdale, Arizona, United States of America ("Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 6, 2003.
On May 8, 2003, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Names at issue. On the same day, May 8, 2003, Go Daddy Software transmitted by e-mail to the Center its verification response confirming that the Respondent is listed as the current registrant of the Domain Names and providing the contact details for the administrative, billing, and technical contacts. Further, the Registrar confirmed that the Domain Names will remain locked during the pending administrative proceeding.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 15, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was June 4, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 6, 2003.
The Center appointed James H. Grossman as the sole panelist in this matter on June 20, 2003. 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
A. Jurisdictional Basis
This dispute is properly within the scope of the Policy, and the Panel has jurisdiction to decide the dispute. The registration agreement, pursuant to which the Disputed Domain Names were registered, incorporates the Policy.
In accordance with Paragraph 4(a) of the Policy, and as detailed below, according to Complainant, Respondent is required to submit to a mandatory administrative proceeding because:
a) The Disputed Domain Names are identical with or confusingly similar to service marks and the trade name in which Ticketmaster has rights; and
b) Respondent has no rights or legitimate interests in the Disputed Domain Names; and
c) The Disputed Domain Names were registered or acquired and are being used in bad faith.
B. Factual and Legal Grounds for Complaint
The following facts taken from the Complaint are accepted by the Panel, in the absence of a Response from Respondent:
Ticketmaster is the global leader in live event ticket sales. Ticketmaster and its affiliates and licensees provide tickets to more than 350,000 events each year, including professional sports, arts, family, concert and other events. Ticketmaster and its affiliates and licensees serve more than 7,000 clients worldwide and act as the exclusive ticketing service for hundreds of leading arenas, stadiums, performing arts venues and theaters. Through Ticketmaster's network of approximately 3,100 retail Ticket Center outlets located in 210 cities in the United States, Canada, the United Kingdom, Ireland, Mexico and Australia, 20 worldwide telephone call centers and its affiliates' and licensees' various websites, including "www.ticketmaster.com", "www.ticketmaster.ca", "www.ticketmaster.com.mx", "www.ticketmaster.ie", "www.ticketmaster.co.uk" and "www.ticketmaster7.com", more than 86.7 million tickets were sold in 2001 valued at more than $3.6 billion. Approximately 43% of Ticketmaster's sales are completed via the Internet on its various Ticketmaster websites.
Ticketmaster has long and extensively used the trade name and service mark TICKETMASTER, and variations thereof, for its ticketing services throughout the United States and internationally (the "TICKETMASTER Mark"). Ticketmaster owns the following U.S. registrations for its TICKETMASTER Mark:
U.S. REG. NO.
GOODS OR SERVICES
January 12, 1993
Accounting services for ticket sales rendered by computer; and promoting sporting events, musical concerts and other entertainment events; ticket agency services for sporting events, musical concert and other entertainment events, in International Class 35.
TICKETMASTER & Design
January 12, 1993
Ticket agency services for sporting events, musical concerts and other entertainment events, in International Class 35
June 26, 2001
On-line ticket agency services for sporting events, musical concerts and other entertainment events, in International Class 35
Each of these registrations is valid, subsisting, and owned by Ticketmaster. U.S. Registration Nos. 1,746,016 and 1,746,017 are incontestable in accordance with 15 U.S.C. § 1064, and are conclusive evidence of the validity of the mark, Ticketmaster's ownership of the TICKETMASTER Mark, and its exclusive right to use the TICKETMASTER Mark in commerce in accordance with 15 U.S.C. §1115(b).
Ticketmaster also has registered and filed applications to register the TICKETMASTER Mark in over 80 countries and the European Union.
Ticketmaster also uses the domain name <ticketmaster.com> in connection with online ticketing services. Anyone in the world with a valid credit card and Internet capability can access Ticketmaster's websites and buy tickets for entertainment events. Ticketmaster's affiliates and licensees in Canada, Mexico, Ireland, the United Kingdom and Australia also maintain similar websites at "www.ticketmaster.ca", "www.ticketmaster.com.mx", "www.ticketmaster.ie", "www.ticketmaster.co.uk", and "www.ticketmaster.com.au". As a result of Ticketmaster's extensive marketing efforts, and the resulting widespread use of its services, "the TICKETMASTER service mark is a strong, arbitrary and well known trademark applied to ticket agency services offered through ticketing outlets and on-line websites . . ." Ticketmaster Corporation v. Dmitri Prem, WIPO Case No. D2000-1550 (January 16, 2001); Ticketmaster Corporation v. DiscoverNet, Inc., WIPO Case No. D2001-0252 (April 9, 2001); Ticketmaster Corporation v. Spider Web Design, Inc., WIPO Case No. D2000-1551 (February 4, 2001); Ticketmaster Corporation v. netAfrik, WIPO Case No. D2001-0906 (August 30, 2001); Ticketmaster Corporation v. Dotsan, WIPO Case No. D2002-0167 (April 8, 2002); Ticketmaster Corporation v. Polanski, WIPO Case No. D2002-0166 (April 8, 2002); Ticketmaster Corporation v. Iskra Service, WIPO Case No. D2002-0165 (April 8, 2002). Consequently, Ticketmaster has come to own a most valuable goodwill symbolized by the TICKETMASTER Mark.
Moreover, "Ticketmaster has demonstrated that its longstanding use of the TICKETMASTER mark and variants thereof, its very high volume of business transacted under or in connection with the mark, as well as the worldwide use and recognition of the mark, places its mark in the category of trademarks with a 'high degree of. . . acquired distinctiveness' and the marks, accordingly, enjoy a wide scope of protection. Ticketmaster Corporation v. Harold R. Brown, II, Harold R. Brown III, and Ted Waitt, WIPO Case No. D2001-0716 (July 18, 2001).
C. Response from Respondent
The Respondent has not filed a Response to the Complaint. Under paragraph 5(e) of the Rules, it is provided that if a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based on the Complaint. Under paragraph 14(b) of the Rules, when a party defaults in complying with any of the requirements of the Rules, in the absence of exceptional circumstances, the Panel is entitled to "draw such inferences therefrom as it considers appropriate". No exceptional circumstances have been brought to the Panel's attention. Accordingly, the Panel makes the findings below on the basis of the material contained in the Complaint.
5. Parties’ Contentions
The Domain Names resolve to "www.ticketvault.com", a virtual ticket broker website. The Complainant states that according to the Registrant’s WhoIs report for <ticketvault.com>, the domain name is owned by Ticket Vault, which has the same address as the Respondent in this case. Moreover, the Administrative Contact and the Technical Contract for <ticketvault.com> are both the Respondent.
Respondent advertises the sale of tickets for sporting events, musical concerts and other entertainment events at the "www.ticketvault.com" website. Ticketmaster also is selling tickets to many of these events. For example, both Ticketmaster and Ticket Vault are selling tickets to the Bon Jovi and Dave Matthews Band concerts.
The Panel has confirmed for itself that the "www.ticketvault.com" website does promote the sale of tickets
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Complainant takes the following position:
The Domain Names are virtually identical and confusingly similar to the TICKETMASTER Mark under Section 4(a)(i) of the Policy. The typographical variations between the TICKETMASTER Mark and the Domain Names are "likely to be overlooked" and are plainly designed to lead consumers who misspell or mistype Ticketmaster's registered and famous name and mark to other websites. Ticketmaster Corporation v. Dotsan, WIPO Case No. D2002-0167 (April 8, 2002) (finding likelihood of confusion between <ticketmaster.com> and <tickectmaster.com> and <tickrtmaster.com>; see also Ticketmaster Corporation v. Polanski, WIPO Case No. D2002-0166 (April 8, 2002) <ticketmasster.com>; Ticketmaster Corporation v. Iskra Service, WIPO Case No. D2002-0165 (April 8, 2002) <ticketmasteer.com>.
With regard to the addition of the "www" before the misspelling of the TICKETMASTER Mark, previous administrative panels have determined that use of a trademark used in conjunction with this prefix constitutes likelihood of confusion since the letters "www" have "no distinguishing capacity in the context of domain names, the letters "www" have the effect of focusing particular attention on the word succeeding them." Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441 (July 13, 2000) transferring <wwwreuters.com>, etc.; see also J. Christian Angle Technology Properties, Inc. v. Alex Vorot, Personal and Free Domains Parking, NAF Claim No. FA0096569 (March 26, 2001) transferring <wwwradioshack.com>. Moreover, administrative panels have found by using "www" before a mark is "taking advantage of a typing error that users commonly make when searching the Internet, i.e. eliminating the period between the www and the domain name." Hewlett-Packard Company v. World Wide Web Home Player, NAF Claim No. FA0096267 (January 8, 2001).
Moreover, the addition of a top-level domain (gTLD).com will not distinguish the Disputed Domain Names. The "addition of the generic top-level-domain (gTLD) .com is without legal significance in determining similarity". BellSouth Intellectual Property Corporation v. Polanski, WIPO Case No. D2002-0170 (May 6, 2002).
The Panel agrees that the Complainant has met the burden of proof as to the Domain Names being confusingly similar. It appears to the Panel that the Respondent has used a bag of tricks in order to deceive the end user into thinking he or she is dealing with the Complainant or an affiliate thereof. In fact, <ticketvault.com> is a competitor. This is done through a predictable mistyping of another's mark which has become recognized as a particular type of cybersquatting known as typosquatting as well as through other devious devices. The result is clear that there is a likelihood of confusion between Complainant’s TICKETMASTER Mark and the Domain Names within the meaning of UDRP Section 4(a)(i).
B. Rights or Legitimate Interests
Complainant makes the following argument:
The Respondent has no rights or legitimate interests in the Domain Names under Section 4(a)(ii) of the Policy. The Respondent has not used and is not known to the public as "TICKETSMASTERS", "WWWTICKETSMASTER" OR "WWWTICKETMASTERS" either in business or personally. Thus, Respondent, cannot, per Policy Sections 4(c)(ii), show bona fide use of its domain name. Alta Vista Co. v. O.F.E.Z. et al., WIPO Case No. D2000-1160 (February 28, 2001); CSA International (a.k.a. Canadian Standards Association) v. John O. Shannon and Care Tech Industries, Inc., WIPO Case No. D2000-0071 (March 24, 2000).
In addition, Ticketmaster has not licensed or otherwise authorized Respondent to use or apply for any domain name incorporating the TICKETMASTER Mark. Compagnie de Saint Gobain v. Com-Union Corp., WIPO Case No. D2000-0020 (March 14, 2000); Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (February 18, 2000).
The Respondent is using the Disputed Domain Names to promote a virtual entertainment events ticket broker website, "www.ticketvault.com". The "www.ticketvault.com" website proclaims, "Welcome to Ticket Vault, the Simple, online event ticketing solution" and "Our Vault is Overflowing with Tickets." At the "www.ticketvault.com" site, the Respondent advertises the sale of tickets to sporting events, musical concerts and other entertainment events. Exhibits M, "www.ticketvault.com" website; see also Exhibits I, J, and K. Ticketmaster also is selling tickets to many of these events.
The Respondent is attempting to divert traffic to a website that directly competes with Ticketmaster. The diversion of traffic through the use of domain names that are confusingly similar to the TICKETMASTER Mark illustrates that the Respondent has no rights or legitimate interests in the Domain Names. Moreover, the fact that Ticketmaster and the websites to which the Domain Names resolve both sell event tickets increases the potential for confusion. AltaVista Company v. O.F.E.Z. et al., WIPO Case No. D2000-1160 (February 28, 2001 ) use of domain names with slight misspellings "to attract Internet users to other directly competitive sites is not a legitimate use of a domain name"; see also, Expedia, Inc. v. Dotsan, WIPO Case No. D2001-1220 (December 18, 2001), finding that although there was no evidence of commercial gain to misleadingly divert consumers or to tarnish the trademark, such redirection "could hardly be called 'legitimate noncommercial or fair use' of the Domain Name." CSA International v. John O. Shannon and Care Tech Industries, Inc., Case D2000-0071 (March 24, 2000);
The Panel has no evidence to the contrary of what is alleged by Complainant. Accordingly, the Panel finds that Respondent's use of the Domain Names does not constitute legitimate use within the meaning of Policy Sections 4(c)(i) - (iii).
C. Registered and Used in Bad Faith
Complainant alleges the following:
By using a misspelling of the well-known TICKETMASTER Mark, the Respondent seeks to attract Internet users who mistype or misspell Ticketmaster's name when seeking to find Ticketmaster's website on the World Wide Web. Such registration and use of a misspelled domain name constitutes "typosquatting," which "in and of itself constitutes bad faith registration and use". Dow Jones & Company, Inc. and Dow Jones LP v. John Zuccarini, d/b/a Cupcake Patrol, WIPO Case No. D2001-0302 (May 18, 2001).
The Respondent's diversion of traffic to "www.ticketvault.com", a website offering goods and services competing with those of Ticketmaster, is also indicative of bad faith pursuant to Sections 4(b)(iii) and (iv) of the Policy. Ticketmaster Corporation v. netAfrik, WIPO Case No. D2001-0906 (August 30, 2001), finding bad faith where the domain names and the services offered were similar such that there was "no doubt the Respondent deliberately chose the disputed domain names"; EBAY, Inc. v. MEOdesigns and Matt Oettinger, WIPO Case No. D2000-1368 (December 15, 2000), finding that the Respondent registered and used the domain name <eebay.com> in bad faith to promote competing auction sites. One administrative panel has even explained that "although not specifically mentioned in the non-exhaustive Policy bad faith provisions, the very fact of registering such a famous mark to use in the same business as Complainant reeks of bad faith." Christie's Inc. v. Tiffany's Jewelry Auction, Inc., WIPO Case No. D2001-0075 (March 6, 2001) (emphasis added).
Based on Ticketmaster's long use and registration of the TICKETMASTER Mark, it can be assumed that the Respondent has actual knowledge of Ticketmaster's rights. At the very least, a trademark search on the United States Patent and Trademark Office website would have disclosed Ticketmaster's trademark rights. Ticketmaster Corporation v. Spider Web Design, Inc., WIPO Case No. D2000-1551 (February 4, 2001), finding "substantial constructive notice" because a trademark search would have revealed Complainant's registration of the mark; General Electric Company v. CPIC NET and Hussain Syed, WIPO Case No. D2001-0087 (May 2, 2001), finding constructive notice where "a trademark search on the date of the registration of the Domain Name would have revealed Complainant's registration of the GE marks in the United States"; Marine Toys for Tots Foundation v. Jim Gayles, WIPO Case No. D2001-0088 (March 20, 2001) finding constructive notice where a trademark search would have revealed complainant's registration of the mark.
The Respondent knowingly chose a domain name, which is virtually identical and limited to the TICKETMASTER Mark. "Respondent could have chosen a domain name adequately reflecting both the object and independent nature of its site, as evidenced today in thousands of domain names." Compagnie de Saint Gobain v. Com-Union Corp, WIPO Case No. D2000-0020 (March 14, 2000). In fact, the Respondent has chosen and uses such a domain name, <ticketvault.com>.
The Respondent deliberately seeks to disrupt the business of Ticketmaster by directing consumers seeking Ticketmaster's website and services to a Ticketmaster competitor, <ticketvault.com> and also seeks commercial gain through the use of the TICKETMASTER Mark. Thus, the Respondent's registration and use of the Disputed Domain Name constitutes use in bad faith within the meaning of UDRP Sections 4(b)(iii) and (iv).
The Panel agrees with the statements set forth above by Complainant and therefore finds there is significant evidence of bad faith. The evidence is only exacerbated by the failure of the Respondent to make any response to the Complaint.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names <ticketsmasters.com>, <wwwticketmasters.com> and <wwwticketsmaster.com> be transferred to the Complainant.
James H. Grossman
Date: July 4, 2003