WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. C&D International, Ltd.
Case No. D2003-0397
1. The Parties
The Complainant is Ticketmaster Corporation, Los Angeles, California, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson of United States of America.
The Respondent is C&D International, Ltd., Daniel Lu, Fucun Town, Jinhua, Zhejiang, Republic of China.
2. The Domain Names and Registrar
The disputed domain names <ticketmaser.com> and <ticketmaste.com> are registered with eNom, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 24, 2003. On May 26, 2003, the Center transmitted by email to eNom, Inc. a request for registrar verification in connection with the domain names at issue. On June 2, 2003, eNom, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 June 6, 2003. In accordance with the Rules, paragraph 5(a), the due date for the Response was June 26, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on June 30, 2003.
The Center appointed Fabrizio Bedarida as the sole panelist in this matter on July 10, 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
Complainant is Ticketmaster Corporation ("Ticketmaster"), an Illinois corporation located in Los Angeles, California. 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 world-wide 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 world-wide telephone call centers and its affiliates' and licensees' various domain names, including <ticketmaster.com>, <ticketmaster.ca>, <ticketmaster.com.mx>, <ticketmaster.ie>, <ticketmaster.co.uk> and <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 several U.S. registrations for its TICKETMASTER Mark. Ticketmaster also has registered and filed applications to register the TICKETMASTER Mark standing alone, or in combination with graphical elements, in over 80 countries including the Republic of China and the European Union. Ticketmaster also uses the domain name <ticketmaster.com> in connection with online ticketing services. Additionally, its affiliates in Canada, Mexico, Ireland, the United Kingdom, and Australia maintain similar websites at local ccTLDs.
The Respondent registered on June 8, 2002, the domain names <ticketmaser.com> and <ticketmaste.com>. The disputed domain names resolve to an unnamed portal for virtual ticket brokers. The unnamed portal lists "Popular Links" which consists of several virtual ticket brokers. These virtual ticket brokers sell tickets to the same events as Ticketmaster.
5. Partiesí Contentions
The Complainant submits that (1) the domain names <ticketmaser.com> and <ticketmaste.com> are identical or confusingly similar to a trademark or service mark, in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain names; (3) the domain names were registered and are being used in bad faith.
The Respondent did not reply to the Complaint. Thus, Respondent has failed to submit any statement. It has not contested the allegations of the Complaint and the Panel shall decide on the basis of Complainantís submissions, and all inferences that can reasonably be drawn therefrom (Rule 14(b) of the Policy).
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the domain names of the Respondent be transferred to the Complainant:
1) the domain names are identical or confusingly similar to a trademark or service mark ("mark") in which the Complainant has rights;
2) the Respondent has no rights or legitimate interests in respect of the domain names;
3) the domain names have been registered and are being used in bad faith.
A. Identical or Confusingly Similar
1) Confusing Similarity with a Mark in which the Complainant has rights
The domain names <ticketmaser.com> and <ticketmaste.com> are nearly identical with the mark "TICKETMASTER" in which the Complainant has rights. In fact, the only difference is in both cases the subtraction of one letter, thus creating the impression that they are misspellings of the Complainantís mark. The subtraction of the "t" in one case and of the "r" in the second one is likely to be overlooked also in view of the close similarity of both words to the common word "master", in oral communication the domain names will be confused in pronunciation with the Complainantís mark. Based on general principles of confusing similarity of marks and noting that the generic TLD indicator ".com" cannot be taken into consideration when judging confusing similarity, the domain names <ticketmaser.com> and <ticketmaste.com> are therefore nearly identical and clearly confusingly similar to the mark TICKETMASTER, in which the Complainant has rights. Also, when taking into account the particularities of the Internet, confusion will arise. The domain names are typographical variations of the Complainantís mark and domain name, which are likely to be erroneously typed by Internet users who intend to accede the Complainantís website under its domain name <ticketmaster.com> and are mistyping it. In view of the use of the domain names, <ticketmaser.com> and <ticketmaste.com> made by the Respondent (see above 4B) confusion is increased. In fact the disputed domain names resolve to an unnamed portal for virtual ticket brokers, which are competitors of the Complainant, providing services nearly identical to those offered by the Complainant. Such use is likely to mislead customers into believing that the Respondent, is somehow associated with the Complainant (such as affiliated, sponsored or otherwise endorsed). That such misspelling or typographical variation of a mark is confusingly similar to the Complainantís mark has repeatedly been held in decisions under the Policy (e.g. WIPO Case No. D2000-1160, Alta Vista Company v. O.F.E.Z.; WIPO Case No. D2001-0302, Dow Jones & Company Inc. and Dow Jones LP v. John Zuccarini).
B. Rights or Legitimate Interests
The Respondent has no connection or affiliation with the Complainant, who has not licensed or otherwise authorized Respondent to use or apply for any domain name incorporating the "Ticketmaster" mark. Respondent does not make any legittimate use of the domain names for its own commercial or non-commercial activities, if any. As said before, Respondentís domain names <ticketmaser.com> and <ticketmaste.com> resolve to an unnamed portal for virtual ticket brokers, which are competitors of the Complainant, providing services nearly identical to those offered by the Complainant. Such use which as a kind of "postal address" links the visitor to other websites offering competitive products/services has repeatedly been held not to be a bona fide offering of goods or services. 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"). Respondent does not promote its own commercial activities, thus Respondent has not been able to become known under these domain names. In the absence of any submission of the Respondent, the Panel therefore concludes that the Respondent has no rights or legitimate interests in the disputed domain names <ticketmaser.com> and <ticketmaste.com>.
C. Registered and Used in Bad Faith
For a Complainant to succeed, the Panel must be satisfied that the domain names have been registered and are being used in bad faith. The Respondent uses the disputed domain names in a manner which can be considered to be use in bad faith, and at the same time such use is an indication that the Respondent has also registered these domain names in bad faith. The Panelist assumes that the Respondent had knowledge of the Complainantís mark TICKETMASTER, when it registered the domain names <ticketmaser.com> and <ticketmaste.com>. Such conclusion is reached from the actual use that the Respondent is making of these domain names, but also from the fact that it chose two apparent misspellings of the Complainantís mark and domain name <ticketmaster.com>. It cannot reasonably be imagined that the Respondent chose for its domain name a combination of the English word "ticket" and the spellings "maser" and "maste" instead of "master", a second English word, if it had not known the Complainantís mark and domain name (moreover the existence of the Complainantís domain name prevented the Respondent from registering <ticketmaster.com>). In addition, based on Ticketmaster's long use and registration of the TICKETMASTER Mark, it can be assumed that Respondent had actual knowledge of Ticketmaster's rights. Respondentís actual knowledge of Ticketmaster's rights can also be demonstrated by the fact that Respondent has placed on its websites clear references to Ticketmaster company and its activities. Precisely, as evidenced by Complainant, on the <ticketmaser.com> home page, one of the "Popular Searches" listed is "Ticket Master." The "Ticket Master" link leads to alleged search results for the words "Ticket Master." The first search result listed is as follows: "Ticketmaster : The worlds largest online ticketing resource. We sell tickets to more than 350,000 events each year including professional sports, arts, family events, concerts, comedy, and more". Even though this search result describes the Complainant, Ticketmaster, the link leads to the website of another virtual ticket broker, "www.platinum-tickets.com". Thus, Respondent knowingly chose the two domain names which are virtually identical to the TICKETMASTER Mark. Actual knowledge of Complainantís trademark and activities at the time of the registration of the disputed domain names is also inference of bad faith, Gianfranco Ferré SPA v. New York Link, Inc. WIPO Case No. D2001-1375 ęÖ.Therefore, when registering the Domain Name, Respondent knowingly chose a name which is identical to the trademark of Complainant, thereby intentionally creating a situation which is at odds with the registered rights of the Complainant.Ľ
Moreover, taking into account the use which the Registrant is making of its domain names, as described before, and in the absence of any submission of the Respondent to the contrary, the Panelist is satisfied that, as evidenced by Complainant, the Respondent by using a misspelling of the TICKETMASTER Mark, 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). Respondent's diversion of traffic to several websites offering goods and services competing with those of Ticketmaster is also indicative of bad faith pursuant to Para 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).
In view of all the above, it is apparent that Respondent deliberately seeks to disrupt the business of Ticketmaster by directing consumers seeking Ticketmaster's website and services to Ticketmaster competitors, and also seeks commercial gain through the use of the TICKETMASTER Mark. Thus, Respondent's registration and use of the disputed domain names constitutes use in bad faith within the meaning of the Policy.
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, <ticketmaser.com> and <ticketmaste.com> be transferred to the Complainant.
Dated: July 16, 2003