Complainant is Ticketmaster, Los Angeles, California, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP.
The Respondent is Wang Xiao Ping, Shanghai, China.
The disputed domain name <tiicketmaster.com> is registered with Public Domain Registry.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 2, 2008. On October 6, 2008, the Center transmitted by email to Public Domain Registry.com a request for registrar verification in connection with the disputed domain name. On October 8, 2008, Public Domain Registry.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 October 9, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 29, 2008. No Response was filed with the Center. Accordingly, the Center notified Respondent's default on October 30, 2008.
The Center appointed Eduardo Machado as the sole panelist in this matter on November 14, 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, Ticketmaster, together with its corporate affiliates and related companies (collectively, “Ticketmaster”) is a global leader in live entertainment ticketing and marketing event ticket sales. Ticketmaster operates in 20 global markets, providing ticket sales, ticket resale services, marketing and distribution through “www.ticketmaster.com”, one of the largest e-commerce sites on the Internet.
The Complainant has registered its TICKETMASTER mark in the United States of America (“United States”) and in many other countries, and owns valid and subsisting federal registrations that the United States Patent and Trademark Office issued for its TICKETMASTER mark.
Complainant contends that the disputed domain name is confusingly similar to the TICKETMASTER mark, consisting of slight typographical variations on Ticketmaster's name and mark.
Complainant states that Ticketmaster has not licensed or otherwise permitted Respondent to use the TICKETMASTER mark. Also, Complainant contends that it has not licensed or otherwise permitted Respondent to apply for or use any domain name incorporating such mark.
Complainant asserts that Respondent is not commonly known by the disputed domain name, nor has applied for or obtained any state or federal trademark or service mark registrations for the disputed domain name.
Complainant contends that TICKETMASTER mark has a strong reputation and is widely known and famous throughout the world and that therefore Respondent would have had probable notice of Ticketmaster's rights in the TICKETMASTER mark when it registered the disputed domain name.
Also, Complainant alleges that Respondent has used and continues to use the disputed domain name to intentionally divert traffic away from Ticketmaster's website, as it resolves to advertising sites that offer links to various businesses, including ticketing sites that compete with Ticketmaster. Complainant has attached a screen capture of the website “www.tiicketmaster.com” with such content, obtained on October 1, 2008.
Thus, Complainant asserts that Respondent diversion of Ticketmaster's customers and potential costumers does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name and is itself evidence of bad faith.
Respondent did not reply to Complainant's contentions.
Pursuant to the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the domain name; and (iii) the domain name have been registered and is being used in bad faith, Policy, paragraph 4(a).
The Panel finds that the domain name <tiicketmaster.com> is confusingly similar to Complainant's TICKETMASTER trademarks. The domain name differs from Complainant's registered TICKETMASTER marks only in the addition of the letter “i”, which is not enough to characterize it as distinct from Complainant's trademarks. Columbia Pictures Industries, Inc. v. Caribbean Online International Ltd. WIPO Case No. D2008-0090 (“adding or removing letters to a domain name is not sufficient to escape the finding of similarity and does not change the overall impression of the designation as being connected to the trademark of Complainant.”).
The Panel finds that Complainant has established the first element of the Policy.
Considering the fame of Complainant's TICKETMASTER marks, the Panel finds that the Respondent's choice of the disputed domain name could not result from mere coincidence. Also, Complainant did not license or otherwise permitted Respondent to use the TICKETMASTER mark, nor does Respondent hold any State or Federal trademark or service mark registration for the disputed domain name.
Since there was no Response filed by Respondent, the Panel is confronted with the issue of whether to award a summary transfer to Complainant, or to consider whether there are plausible arguments in favour of Respondent. In this case, however, either alternative leads to a clear conclusion: the disputed domain name is plainly designed to lead a consumer who misspells or mistypes “Ticketmaster” to Respondent's website.
With respect to Policy, paragraph 4(c)(ii), the Panel therefore does not consider that respondent has rights or legitimate interests in the disputed domain name.
Under paragraph 4(b) of the Policy, a respondent has used and registered a domain name in bad faith if, inter alia, the respondent has used the domain name intentionally to attempt to attract, for commercial gain, Internet users to the respondent's website or other online location by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation or endorsement of the respondent's site or of a product or service offered on the respondent's site. Policy, paragraph 4(b)(iv).
The Panel finds that Respondent registered the domain name in bad faith.
Complainant has provided a screen capture of the website “www.tiicketmaster.com” obtained on October 1, 2008. Such screen capture shows that the disputed domain provides advertising sites that offer links to various businesses, including ticketing sites that compete with Complainant. At the time this decision was issued, the disputed domain name resolved to an error page.
According to the prevailing opinion of numerous UDRP panels, in some circumstances so-called “passive holding” of a domain name can be treated as its being used in bad faith. The leading case in this regard is Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. The learned panelist in this case found that in order to establish that the registrant was using a domain name in bad faith it was not necessary to find that he had undertaken any positive action in relation to the domain name. In some circumstances even inaction (“passive holding”) falls within the concept of the domain name “being used in bad faith”. In Telstra it was additionally stated that it is not possible to determine in abstract what circumstances of passive holding other than identified in paragraphs 4(b)(i-iii) of the Policy can constitute bad faith use, and in considering whether the passive holding of a domain name following its bad faith registration satisfies the requirements of paragraph 4(a)(iii), the panel must pay close attention to all the circumstances of the respondent's behavior.
Furthermore, Complainant's Ticketmaster service is well-known. Also, Respondent has provided no evidence rebutting Complainant's assertions. Therefore, the Panel concludes that the domain name was registered and used 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 <tiicketmaster.com> be transferred to Complainant.
Dated: November 28, 2008