WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. Global Access
Case No. D2007-1921
1. The Parties
The Complainant is Ticketmaster Corporation, Southbank, Australia.
The Respondent is Global Access, Douglas, Isle of Man, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <ticketmast.com> is registered with Fabulous.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 21, 2007. On December 27, 2007, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the domain name at issue. On January 3, 2008, Fabulous.com 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 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 January 8, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 28, 2008. The Response was filed with the Center on January 24, 2008.
The Center appointed M. Scott Donahey as the sole panelist in this matter on February 6, 2008. 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 sells tickets to live entertainment and sporting events in 20 markets worldwide. In 2006, Complainant’s 30th year in business, Complainant sold more than 128 million tickets valued at more than US$7 billion through a network of approximately 6500 retail outlets, 20 worldwide call centers, the website to which “www.ticketmaster.com” resolves, and affiliated websites.
Complainant is the owner of registered service marks in the United States and the United Kingdom for the mark TICKETMASTER. The first registration in the United States issued on October 21, 1991, and the first registration in the United Kingdom issued on June 26, 1992. Complaint, Annexes D and E. Since at least as early as 1993, Complainant has been using its TICKETMASTER marks in the promotion and sale of tickets to live entertainment events. Complainant has never authorized Respondent to use Complainant’s TICKETMASTER marks, or any variation thereof, in any manner, including in a domain name.
Respondent registered the domain name at issue on June 26, 2002. Complaint, Annex A. The website to which the domain name at issue resolves offers tickets to live entertainment and sporting events by a direct competitor of Complainant. Complaint, Annex F.
Respondent makes several assertions of fact which are unsupported by any annexed evidence. Respondent contends that it recently acquired the domain name in dispute in the purchase of a large portfolio of domain names according to a written agreement which contained representations and warranties by the seller that the domain names included in the portfolio did not violate the intellectual property rights of any third party.
Respondent asserts that prior to receiving the complaint Respondent had no knowledge of either Complainant or of its TICKETMASTER mark. Respondent further asserts that the domain name at issue was first registered in November 2000, but does not attach evidence thereof. Upon receipt of the Complaint, Respondent offered to transfer the domain name at issue to Complainant, who refused to accept that offer absent an accompanying payment of US$2,500. Respondent declined to make such a payment.
While continuing to assert that its use of the domain name at issue is in good faith, Respondent offers to consent to transfer of the domain name to Complainant without findings by the panel.
5. Parties’ Contentions
Complainant contends that the domain name at issue is identical or confusingly similar to its TICKETMASTER mark in which Complainant holds registered rights, that Respondent has no rights or legitimate interests in respect of the domain name, and that Respondent has registered and is using the domain name at issue in bad faith by having the domain name resolve to the website of a competitor from which Respondent is surely receiving compensation.
Respondent contends that until Respondent received the Complaint that Respondent had no knowledge of either Complainant or of the TICKETMASTER mark, that Respondent’s registration and use are not in bad faith, and that Respondent wishes to transfer the domain name to Complainant without findings by the Panel on the issue of bad faith.
6. Discussion and Findings
A. Consent to Transfer
Respondent requests that the name be transferred to Complainant without findings. Because of the facts of this case, and especially because of the way in which the domain name is being used, the Panel declines to do so. Moreover, such a gratuitous transfer of the domain name at issue might well serve to cut off Respondent’s asserted rights against the unnamed party who allegedly sold the domain name to Respondent and allegedly represented and warranted that the domain name at issue did not violate the intellectual property rights of any third parties.
B. Identical or Confusingly Similar
The Panel finds that Complainant has registered service mark rights in the mark TICKETMASTER and that the domain name at issue is confusingly similar to Complainant’s registered service mark. Ticketmaster Corporation v. C&D International, Ltd., WIPO Case No. D2003-0397 (<ticketmaser.com> and <ticketmaste.com>; Ticketmaster Corporation v. Dotsan, WIPO Case No. D2002-0167 (<tickrtmaster.com> and <tickectmaster.com>); and Ticketmaster Corporation v. Iskra Service, WIPO Case No. D2002-0165 (<ticketmasteer.com>).
C. Rights or Legitimate Interests
The consensus view of WIPO panelists concerning the burden of establishing no rights or legitimate interests in respect of the domain name is as follows:
While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP.
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Section 2.1.
In the present case the Complainant alleges that Respondent has no rights or legitimate interests in respect of the domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name at issue.
D. Registered and Used in Bad Faith
The Panel in the case of The iFranchise Group v. Jay Bean / MDNH, Inc. / Moniker Privacy Services , WIPO Case No. D2007-1438, examined the purchase of a portfolio of domain names in light of the Policy, and the decision merits quotation on this point:
“Respondent argued that it acquired the domain name at issue from the original registrant in a purchase of an ongoing business, and that domain names acquired in this type of acquisition should be treated as if the Respondent, as the purchaser of an ongoing business, should be entitled to the date of original registration by its predecessor for purposes of the UDRP. This argument must fail on two bases.
“First, the general rule established by panels is that a subsequent acquirer of a domain name is held to have “registered” that domain name for purposes of the Policy as of the date of acquisition of the registration rights. HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager, WIPO Case No. D2007-0062 (“[T]he transfer of a domain name to a third party amounts to a new registration, requiring the issue of bad faith registration to be determined at the time the current registrant took possession of the domain name.”). The Panel sees no reason why an acquisition of assets should be treated any differently.
“Parties frequently acquire intellectual property interests in an acquisition of assets. Parties also acquire technologies or compositions that may infringe the intellectual property of others. Parties must and do protect themselves by securing representations and warranties from the selling parties that the intellectual property rights and technologies acquired do not infringe the intellectual property of others. It appears that [the purchaser] attempted to secure such protection for itself in the Asset Purchase Agreement. Supplemental Response, Annex C, Asset Purchase Agreement, § 2.11(f), p. 16. If Respondent were the acquiring party in the Asset Purchase Agreement in this case, it could so have protected itself.”
In the present case Respondent asserts that it acquired the domain name at issue in a portfolio of domain names which it acquired from a third party. However, it offers no proof of such acquisition. Respondent also asserts that it secured from the seller certain written representations and warranties that the acquired domain names did not violate the intellectual property rights of other third parties. Again, Respondent offers no evidence of such written representations and warranties.
Assuming without deciding that Respondent’s assertions are true, Respondent is the registrant of the domain name for purposes of the Policy as at the date of the acquisition of the portfolio, which according to Respondent was “recently”. At the time that Respondent contemplated the acquisition, Respondent either could have exercised due diligence, at which time it should reasonably have discovered the domain name at issue and Complainant’s trademark rights and the fact that the domain name at issue was being used to resolve to a website at which services directly competitive with those offered by complainant were being offered, or Respondent could have required that the seller furnish Respondent with representations and warranties sufficient to indemnify Respondent in the event that a domain name and its use violated a third party’s intellectual property rights. Based solely on Respondent’s assertions, the Panel assumes without deciding that Respondent did the latter.
Accordingly, the Panel finds that Respondent has registered and is using the domain name in bad faith in that 1) at the time Respondent allegedly acquired the name, Complainant’s service mark rights were readily discoverable, 2) that the domain name at issue was apparently being used to resolve to a website for purposes of commercial gain, and 3) that the user was bound to confuse the seller of the services with Complainant. Moreover, assuming that Respondent’s assertions are true, Respondent may have a claim against the seller of the domain name portfolio for breach of its warranties and representations.
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 name, <ticketmast.com> be transferred to the Complainant.
M. Scott Donahey
Dated: February 13, 2008