WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. WhoisGuard Protected
Case No. D2008-0350
1. The Parties
The Complainant is Ticketmaster Corporation, of California, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, United States of America.
The Respondent is WhoisGuard Protected, of California, United States of America.
2. The Domain Name and Registrar
The disputed domain name <ticketmastery.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 6, 2008. On March 10, 2008, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On March 10, 2008, eNom 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 March 11, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was March 31, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 1, 2008.
The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on April 7, 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
The Complainant sells tickets to live entertainment and sporting events in 20 markets worldwide, acting as an agent on behalf of its clients. The Complainant serves 9,000 clients worldwide and can trace its origins back some 30 years. In 2006, the Complainant provided tickets to more than 223,000 distinct events in the United States and sold more than 128 million tickets worldwide, valued at over $7 billion. The Complainant uses the domain name <ticketmaster.com> in connection with its online ticketing services, whereby Internet users can access the Complainant’s web site and buy tickets for entertainment events.
The Complainant maintains a worldwide portfolio of more than 250 registered trade marks for the mark TICKETMASTER and variations and has used this mark since 1993 in connection with ticket sales rendered by computer and related activities.
The Respondent registered the disputed domain name on January 30, 2006. At the date of filing of the Complaint, the website associated with the disputed domain name consisted of ticket-related advertisements, a substantial majority of which resolved to a website named www.stubhub.com which is a competitor of the Complainant’s website.
5. Parties’ Contentions
The Complainant submits that the disputed domain name is confusingly similar to the Complainant’s well-known TICKETMASTER mark, consisting of a slight typographical variation. It is plainly designed to lead a consumer who misspells or mistypes TICKETMASTER to the Respondent’s web site or to the Complainant’s competitor’s web site. A misspelling or typographical variation of a well-known mark is deemed to be ‘confusingly similar’ to that mark for the purposes of the Policy. The disputed domain name is also confusingly similar to the Complainant’s TICKETMASTER mark because it incorporates the exact mark in its entirety.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not known by the TICKETMASTER mark and has not acquired any trademark or service mark rights in the TICKETMASTER mark. The Complainant has not licensed or otherwise permitted the Respondent to use the Complainant’s TICKETMASTER mark or to apply for or use any domain names incorporating it.
The Complainant argues that the Respondent has registered and is using the disputed domain name in bad faith. As a matter of law, the Respondent had constructive notice of Complainant’s United States registrations of its TICKETMASTER trademark at the time that the Respondent registered the disputed domain name. Based on the Complainant’s long use and registration of its TICKETMASTER trademark, and its corresponding fame, it must be assumed that the Respondent has actual knowledge of Ticketmaster’s rights. A simple check of the United States Patent and Trademark Office web site would have disclosed the Complainant’s trademark rights. Accordingly, the Respondent could not have registered the disputed domain name with the intention of using it legitimately.
The Complainant uses the mark TICKETMASTER in connection with its ticketing services and the disputed domain name also is used for ticketing services. Consequently, the Complainant says that the Respondent’s intentional use of the disputed domain name is likely to mislead customers into believing that the Respondent is, or is legitimately associated with, the Complainant when that is not the case, all to the detriment of the Complainant and in deception of the public. There is no bona fide use within the meaning of paragraph 4(c)(i) of the Policy when the Respondent intentionally and misleadingly diverts users to competitor’s web sites. The Respondent’s registration and use of misspelled domain names constitutes ‘typosquatting’, which in and of itself constitutes bad faith registration and use. It is likely that a significant number of consumers looking for <ticketmaster.com> will mistype the TICKETMASTER name and resolve to the Respondent’s web site. It is manifest that the Respondent intends this to happen and hopes to attract business which it would otherwise not enjoy. There is simply no plausible alternative explanation as to why the Respondent chose this disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant is required under paragraph 4(a)(i) of the Policy to prove that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
The Panel finds that the Complainant has established rights in its TICKETMASTER trademarks. The Complainant can point to its extensive portfolio of registered trademarks and its use of the marks over the last fifteen years. Clearly, the disputed domain name is not identical to these trademarks, although it includes the Complainant’s trademark in its entirety. The difference is the addition of the letter “y” to the TICKETMASTER trademark. As is customary in proceedings under the Policy, the generic top level domain (.com) may be discounted as it is wholly generic, leaving a comparison between TICKETMASTER and “ticketmastery”. The Complainant’s mark is very well-known, particularly on the Internet given the Complainant’s worldwide ticket agency activities. It is well recognized in previous cases under the Policy that where such a mark is incorporated in its entirety within a domain name, the addition of one or more generic words, or in this case a single letter, will not distinguish that domain name from the mark (see, for example, Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Kil Inja, WIPO Case No. D2000-1409).
In the Panel’s view, the dominant part of the disputed domain name is the Complainant’s trademark TICKETMASTER. While it could be argued that the disputed domain name consists of two generic words, “ticket” and “mastery”, there is no doubt in the Panel’s mind that even if the domain name is viewed in those terms, it is nevertheless confusingly similar to the Complainant's trademark, particularly given the latter’s high degree of recognition online. In these circumstances, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant is required under paragraph 4(a)(ii) of the Policy to prove that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
According to paragraph 4(c) of the Policy, a Respondent may establish its rights or legitimate interests in a disputed domain name, among other circumstances, by showing any of the following elements:
“(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
As the Respondent did not respond to the Complaint, it did not submit any evidence demonstrating rights or a legitimate interest in the disputed domain name. The Complainant asserts that the Respondent is not known by the TICKETMASTER mark and has received no permission from the Complainant to use it. The Complainant also points out that the current use of the disputed domain name is to point to a website which provides a series of ticket-related links and advertisements which will in turn direct the user to the Complainant’s competitors.
The Respondent has chosen not to explain its conduct or to set out any rights or legitimate interests in the disputed domain name. It seems clear to the Panel, in the absence of any alternative explanation, that the Respondent selected the disputed domain name because of its close association with the Complainant’s widely known trademark and online identity, with a view to receiving revenue from web traffic which the Respondent directs to the Complainant’s competitors via the associated website. This could not be described as a bona fide offering of goods or services and it is clear that the Respondent’s use of the disputed domain name in this manner does not confer any rights or legitimate interests upon it. Furthermore, the Panel cannot conceive of any possible legitimate interest or right that the Respondent might have in the disputed domain name.
Accordingly, the Panel finds that the Complainant has proved that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Complainant is required under paragraph 4(a)(iii) of the Policy to prove that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant refers to the Respondent’s constructive knowledge of the Complainant’s registered trademarks and the latter’s long use and fame. Nevertheless, the Panel considers that the Complainant’s submissions regarding ‘typosquatting’ and the potential for Internet users looking for the Complainant’s site to misspell the Complainant’s own <ticketmaster.com> domain name as the disputed domain name are the most compelling.
A consideration of the website associated with the disputed domain name demonstrates to the Panel’s satisfaction that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of that web site, as contemplated by paragraph 4(b)(iv) of the Policy. The Panel cannot conceive of any alternative explanation as to the nature of the Respondent’s registration and use of the disputed domain name and it is significant that the Respondent has chosen to offer no such justification of its actions regarding the disputed domain name, in the face of the Complainant’s submissions, despite having been provided with the opportunity to do so.
In these circumstances, the Panel finds that the Complainant has proved that the Respondent has registered and used the disputed domain name in bad faith.
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 <ticketmastery.com> be transferred to the Complainant.
Andrew D. S. Lothian
Date: April 18, 2008