The Complainant is Ticketmaster, of the United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, United States of America.
The Respondent is John Bonk of the United States of America.
The disputed domain name <homeopathyticketmaster.com> is registered with GoDaddy.com, Inc. (“GoDaddy”)
The Complaint was filed with the WIPO Arbitration and Mediation Center (“Center”) on September 30, 2008. On October 3, 2008, the Center transmitted by email to GoDaddy a request for registrar verification in connection with the disputed domain name. On October 3, 2008, GoDaddy transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant, providing contact information, and confirming other details of the registration. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (“Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“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 October 7, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 27, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 28, 2008.
The Center appointed Debra J. Stanek as the sole panelist in this matter on November 11, 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.
Complainant for many years has sold tickets to entertainment and other events worldwide under the name “Ticketmaster.” It owns several United States federal trademark registrations for TICKETMASTER marks, the earliest of which was issued in 1993, for its ticket-related services. Its registrations include one for the mark TICKETMASTER.COM, which issued in 2001. Complainant also uses the domain name <ticketmaster.com> for a website that offers its online ticketing services.
The disputed domain name was registered in August 2007. It contains sponsored links, including links to websites that offer the ticketing services of others.
(1) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights.
Complainant owns numerous trademark registrations, in the United States and throughout the world, for its TICKETMASTER marks. As a result of its long use and extensive promotion, the TICKETMASTER mark has become well-known and is famous.
The disputed domain name is confusingly similar to the TICKETMASTER mark because it incorporates it in its entirety. Including the term “homeopathy” does not alleviate the confusing similarity; instead, it aggravates it.
(2) Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has not licensed or permitted Respondent to use the TICKETMASTER mark in a domain name.
Respondent is not commonly known by the disputed domain name and has not acquired any trademark or service mark rights in the name. To the best of Complainant's knowledge, Respondent has not applied for or obtained any state or federal trademark or service mark registrations for the disputed domain name.
(3) The disputed domain name is registered and is being used in bad faith.
Respondent has had constructive notice of Complainant's trademark rights since 1991, when Complainant first applied to register its TICKETMASTER mark in the United States Patent and Trademark Office.
Respondent likely had actual knowledge of Complainant's trademark rights.
The disputed domain name is used with a website that offers links to Complainant's competitors, thus diverting Complainant's customers and potential customers to other sites. Such a use is not a bona fide offering of goods and services and is evidence of bad faith.
Given the fame of Complainant's mark, it is not possible to conceive of circumstances under which Respondent could legitimately use the domain name.
The Respondent did not reply to the Complainant's contentions.
In order to prevail, Complainant must prove, as to the disputed domain name, that:
(i) It is identical or confusingly similar to a mark in which Complainant has rights.
(ii) Respondent has no rights or legitimate interests in respect to it.
(iii) It has been registered and is being used in bad faith.
Policy, paragraph 4(a). The Policy sets out examples of circumstances that may evidence a respondent's rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as circumstances that may evidence a respondent's bad faith registration and use, see Policy, paragraph 4(b).
Although Respondent has not answered the Complaint, a default does not automatically result in a finding for Complainant. Rather, Complainant continues to have the burden of establishing each of the required elements. The Panel may, however, draw such inferences from the default as it considers appropriate. See Rules, paragraph 14(b).
Complainant has established its rights in the TICKETMASTER mark mark (and the TICKETMASTER.COM mark) by virtue of the evidence of its United States federal trademark registrations.
The disputed domain name is not identical to Complainant's mark. Complainant asserts that the disputed domain name is confusingly similar because it includes Complainant's entire mark. While the Panel agrees that, as a general matter, a domain name is likely to be found confusingly similar to a mark if it incorporates the mark or a variation of the mark, such a finding is not automatic. However, the Panel does agree that here, although the juxtaposition of the term “homeopathy” with Complainant's mark creates an unusual pairing, with differences in appearance, pronunciation, and meaning, those differences are not differences in “ticketmaster” portion of the domain name, which the Panel views as the dominant feature of the domain name.
Further, preceding Complainant's mark with a generic term – even one that creates an unusual connotation - does not distinguish or differentiate the domain name from Complainant's mark.
Accordingly, the Panel finds that Respondent's domain name is confusingly similar to a mark in which Complainant has rights.
The Panel, consistent with the consensus view, finds that Complainant may establish that Respondent has no rights or legitimate interests in respect of the domain name by making a prima facie showing that respondent lacks rights or legitimate interests. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Question 2.1 (once complainant makes prima facie case, respondent has burden of showing rights or legitimate interests in the domain name).
Paragraph 4(c) of the Policy sets out the following examples that may demonstrate rights or legitimate interests in the disputed domain name:
(i) before any notice to you 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 (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 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.
The Panel finds that Complainant has made a prima facie showing that Respondent has no rights or legitimate interests in the disputed domain name.
It does not appear that Respondent engaged in – or could under the circumstances have engaged in – any legitimate use of the domain name. There is no reason to believe, from the WHOIS record or otherwise, that Respondent is or could be commonly known by the domain name. It does not appear that Respondent is making a legitimate noncommercial or fair use of the domain name.
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant must establish that the disputed domain name was registered and is being used in bad faith. The Policy itself sets out four sets of circumstances, evidence of which can establish bad faith, see Policy, paragraph 4(b)(i)-(iv):
(1) Registering the domain name primarily to sell it for more than documented out-of-pocket costs, see Policy, paragraph 4(b)(i).
(2) Registering the domain name to prevent the owner of the trademark from reflecting the mark in a domain name, where there is a pattern of such conduct, see Policy, paragraph 4(b)(ii).
(3) Registering the domain name primarily to disrupt the business of a competitor, see Policy, paragraph 4(b)(iii).
(4) Using the domain name to intentionally attempt to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with complainant's mark as to the source, sponsorship, affiliation, or endorsement, see Policy, paragraph 4(b)(iv).
Complainant's rights in its marks long predate Respondent's registration and use of the disputed domain name. Complainant's rights in its marks are well-established and well-known throughout the United States and elsewhere. Given the fame of Complainant's marks in the United States, where Respondent is located, the Panel believes that it is highly probable that Respondent had actual knowledge of Complainant's trademark rights at the time the domain name was registered.
Further, the Panel has already concluded that Respondent has no right or legitimate interest in the domain name and that the use of the domain name was not in connection with a bona fide offering of goods or services.
Under these circumstances, combined with the adverse inferences drawn by Respondent's failure to respond, the Panel finds that Complainant has established that Respondent has registered and is using the 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, <homeopathyticketmaster.com>, be transferred to the Complainant.
Debra J. Stanek
Dated: November 25, 2008