WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. Yong Li
Case No. D2003-0905
1. The Parties
The Complainant is Ticketmaster Corporation of West Hollywood, California, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson of Chicago, Illinois, United States of America.
The Respondent is Yong Li of Beijing, China.
2. The Domain Names and Registrar
The Disputed Domain Names <ticjetmaster.com>, <tickedmaster.com>, <tickekmaster.com>, <tickestmaster.com>, <ticketamster.com>, <ticketmaseter.com>, <ticktmaster.com> are registered with iHoldings.com Inc. d/b/a DotRegistrar.com.
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 13, 2003. On November 13, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain names at issue. On November 17, 2003, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response (confirming that the Respondent is listed as the registrant). In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on November 24, 2003.
3.2 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"), 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"). The Administrative Panel ("the Panel") is satisfied that this is the case.
3.3 The Complainant made a payment in the required amount to the Center.
3.4 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 November 27, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was December 17, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on December 19 2003.
3.5 The Center appointed Charné Le Roux as the sole panelist in this matter on January 6, 2004. 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.
3.6 The language of the proceedings is English.
4. Factual Background
4.1 The Complainant provides live event tickets worldwide under the trade mark TICKETMASTER. It submits that it is the global leader in live event ticket sales and that it is the official ticketing supporter of the Athens 2004 Olympic Games. The Complainant claims that in 2002 alone it sold more than 95 million tickets valued at more than US$4 billion.
The Complainant indicates that it registered the trade marks TICKETMASTER and TICKETMASTER.COM in the United States of America in 1993 and 2002, respectively, in respect of its ticketing services and also associated services. The Complainant advises that, in addition to its USA registrations, it also registered the TICKETMASTER trade mark in over 79 foreign countries. The Complainant and its affiliates in Canada, Mexico, Ireland, the United Kingdom and Australia currently use and maintain websites at "www.tickticketmaster.com", "www.ticketmaster.ca", "www.ticketmaster.com.mx", "www.ticketmaster.ie", "www.ticketmaster.co.uk" and "www.ticketmaster7.com". The Complainant claims that its TICKETMASTER trade mark is well known.
The Respondent did not reply to the Complainantís contentions. The only information regarding the Respondent that is available to this Panel is that the Respondent registered the 7 (seven) Disputed Domain Names on August 26, 2002, August 31, 2002, September 13, 2002, and June 9, 2003, respectively. As from November 7, 2003, the websites maintained by the Respondent under the Disputed Domain Names all resolve to the websites at "www.ownbox.com", "www.ticketsnow.com", "www.super-casino.com", "www.superslots.com", "www.englishharbour.com", which, the Complainant advises, are websites offering event tickets for sale and/or virtual casino services. The websites appear as new browser windows depending on the userís instruction to a pop-up box with the wording "congratulations you have won virtual reality casino." On-line investigations conducted by the Panel indicate that the Disputed Domain Names primarily resolve to the website at "www.ticketsnow.com", which offers event tickets for sale.
5. Partiesí Contentions
The Complainant contends that the Disputed Domain Names are confusingly similar to its TICKETMASTER trade mark because they consist of slightly typographical variations of the Complainantís TICKETMASTER trade mark and are designed to lead a consumer who misspells or mistypes the TICKETMASTER trade mark to the Respondentís website.
The Complainant also contends that the Respondent lacks rights or legitimate interests in the Disputed Domain Names in that
a) the Respondent registered the Disputed Domain Names well after the first use and registration by the Complainant of its TICKETMASTER trade mark;
b) the Respondent is not commonly known by any of the Disputed Domain Names;
c) the Respondent has not applied for or obtained any state or federal trade mark or service mark registrations for any of the Disputed Domain Names; and
d) the websites to which the Disputed Domain Names resolve offer tickets to the same events in respect of which the Complainant offers tickets under the trade mark TICKETMASTER and therefore, that the Respondent intended by the use and registration of the Disputed Domain Names to mislead customers into believing that the Respondent is the Complainant or associated with the Complainant.
The Complainant contends, finally, that the Respondent acquired and uses the Disputed Domain Names in bad faith. The Complainant indicates that
(a) both the Respondent and the Complainant provide ticketing services under confusingly similar or nearly identical trade marks, which increases the potential for confusion;
(b) the Respondentís registration and use of the misspelled domain names constitute typosquatting which, in itself, constitutes bad faith registration and use;
(c) it may be assumed that the Respondent had actual knowledge of the Complainantís rights because a trade mark search on the United States Patent and Trade Marks Office website would have disclosed the Complainantís trade marks; and
(d) the Respondentís registration of domain names consisting of well known trade marks owned by third parties being<ifficemax.com>, <harrarhs.com>, <nymagazine.com>, <attbroad.com>, constitutes a pattern of such conduct and is evidence of the Respondentís bad faith.
The Complainant requests that the Disputed Domain Names be transferred to it.
The Respondent did not reply to the Complainantís contentions.
6. Discussion and Findings
(i) Procedural matters
a. Jurisdiction of the Panel.
The Panelís jurisdiction has not been placed in dispute and the Panel finds that the dispute is properly within the scope of the Policy and that it is within its jurisdiction to adjudicate the issues in this case.
b. Default of the Respondent.
The Respondent has not reacted to the Complaint, but this does not relieve the Complainant of the burden of proof. The Respondentís failure to deny the Complainantís allegations and the evidence submitted by the Complainant do, however, in terms of the Rules, permit the Panel to draw appropriate inferences.
(ii) Substantive matters
Paragraph 4 of the Policy requires that the Complainant proves each of the following three elements in order for the Disputed Domain Names to be transferred:
a. that the Disputed Domain Names registered by the Respondent are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
b. that the Respondent has no rights or legitimate interests with respect to the Disputes Domain Names; and
c. that the Disputed Domain Names have been registered and are being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has proven that it is the owner of rights in the trade mark TICKETMASTER and that the mark has become known as that of the Complainant, not only in its home country, but virtually worldwide.
The Panel also finds that the Disputed Domain Names are confusingly similar to the Complainantís trade mark. They all consist of slight typographical variations of the TICKETMASTER trade mark. It has been held by previous panels that a misspelling or typographical variation of a well known trade mark does not assist a Respondent in escaping a finding of confusing similarity. Of particular relevance are the following domain names, which were all held to be confusingly similar to the TICKETMASTER trade mark of the Complainant: <ticketmaser.com>, <ticketmaste.com>. See Ticketmaster Corporation v. C&D International, Ltd., (WIPO Case No. D2003-0397); <ticketsmasters.com>, <wwwticketmasters.com> and <wwwticketsmaster.com>, Ticketmaster Corporation v. Woofer Smith, (WIPO Case No. D2003-0346); <tickrtmaster.com> and <tickectmaster.com>, Ticketmaster Corporation v. Dotsan, (WIPO Case No. D2002-0167), <ticketmasster.com> (WIPO Case No. D2002-0166) and <ticketmasteer.com>, Ticketmaster Corporation v. Iskra Service, (WIPO Case No. D2002-0165).
B. Rights or Legitimate Interests
The panel in Do The Hustle, LLC v. Tropic Web, (WIPO Case No. D2000-0624), summarised the burden of proof in respect of paragraph 4(a)(ii) of the Policy, namely that once the Complainant has asserted that the Respondent has no rights or legitimate interest, the burden of proof shifts to the Respondent. The Respondent must then make more than an assertion that it has rights or legitimate interests and must provide factual evidence in support of its claim. Paragraph 4(c) of the Policy provides circumstances whereby the Respondent may demonstrate its rights or legitimate interests in a domain name.
The Complainant in this matter has made the required assertion to which the Respondent has not reacted. The Panel finds that the Respondentís failure to file a response indicates a lack of legitimate interest. See Time Out Group Ltd. v. Marc Jacobson, (WIPO Case No. D2001-0317).
Furthermore, on the facts of this matter, the Respondent uses the Disputed Domain Names to promote the sale of tickets in direct competition with the Complainant. The Panel finds that Internet users will be attracted to the websites linked to the Disputed Domain Names by the well known TICKETMASTER trade mark and that they will access those websites because they are interested in the Complainantís services. The Panel is of the view that the Respondentís only interest in the Disputed Domain Names is to derive a benefit from the goodwill that attaches to the Complainantís trade mark.
The Panel finds that the Complainant has discharged its onus in proving that the Respondent does not have rights or a legitimate interest in the Disputed Domain Names.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive list of factors, any one of which may demonstrate bad faith. The Complainant contends that the Respondent registered the domain names of other well known third parties. In that regard, paragraph 4(b)(ii) of the Policy provides that where a Respondent has registered a domain name in order to prevent the owner of a trade mark or service mark from reflecting the mark in a corresponding domain name, provided that it has engaged in a pattern of such conduct, the conduct constitutes evidence of the registration and use of a domain name in bad faith.
The Complainant also relies on paragraph 4(b)(iv) of the Policy, which provides that bad faith may be evidenced by use by the Respondent of a domain name with the intention to attract, for commercial gain, Internet users to the Respondentís website or other online location, by creating the likelihood of confusion with the Complainantís trade mark as to the source, sponsorship, affiliation or endorsement of the Respondentís website or location or of a product or service on its website or location.
The Panel finds that the registration by the Respondent of domain names that incorporate the trade marks of other parties as shown by the Complainant constitutes an engagement in a pattern of such conduct. The Panel is critical of the Respondentís conduct in persisting with the registration and maintenance of domain names that include the trade marks of third parties despite decisions against the Respondent by other panels to transfer such domain names.
The Panel also finds that the Respondent is intentionally diverting Internet users to his website by exploiting the confusing similarity between the Disputed Domain Names and the Complainantís TICKETMASTER trade mark and that the Respondent is engaging in such conduct in order to reap a commercial benefit.
Consequently, the Panel holds that paragraphs 4(b)(ii) and 4(b)(iv) of the Policy have been satisfied and thus, that the Complainant has discharged its onus in showing that the Respondent has registered and used the Disputed Domain Names in bad faith. Having found for the Complainant on the basis of paragraphs 4(b)(ii) and 4(b)(iv) of the Policy, the Panel does not consider it necessary to deal with the significant additional evidence of bad faith.
In accordance with paragraph 4(i) of the Policy and paragraph 15 of the Rules, the Panel finds that the Complainant has established that:
(i) the Disputed Domain Names are identical or confusingly similar to the Complainantís TICKETMASTER trade mark;
(ii) that the Respondent has no rights or legitimate interest with respect to the Disputed Domain Names; and
(iii) that the Disputed Domain Names have been registered and are being used in bad faith.
Accordingly, the Panel grants the Complainantís request that the Disputed Domain Names be transferred to it.
Charné Le Roux
Dated: January 16, 2004