The Complainant is Ticketmaster of Los Angeles, California, United States of America.
The Respondent is Ren Chenhua of Huangshan, Anhui Province, the People's Republic of China.
The disputed domain name <chinaticketmaster.com> is registered with Melbourne IT Ltd.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 3, 2008. On October 7, 2008, the Center transmitted by email to Melbourne IT Ltd a request for registrar verification in connection with the domain name at issue. On October 8, 2008, Melbourne IT Ltd 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 13, 2008. In accordance with paragraph 5(a) of the Rules, the due date for Response was November 2, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 3, 2008.
The Center appointed Brigitte Joppich as the sole panelist in this matter on November 13, 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 paragraph 7 of the Rules.
The Complainant, together with its related companies, is a global leader in live entertainment ticketing and marketing event ticket sales. It operates in 20 global markets, providing ticket sales, ticket resale services, and marketing and distribution through its website at <ticketmaster.com>. The Complainant also operates through approximately 6,700 retail outlets and 21 worldwide call centers. Established in 1976, the Complainant serves more than 10,000 clients worldwide across multiple event categories, providing exclusive ticketing services for leading arenas, stadiums, professional sports franchises and leagues, college sports teams, performing arts venues, museums, and theaters. In 2007, the Complainant sold more than 141 million tickets. The Complainant also was the official ticketing provider for the Athens 2004 Olympic Games and the Beijing 2008 Olympic Games.
Prior to the Respondent's registration of the disputed domain name, the Complainant or its predecessors) has continuously used the TICKETMASTER mark for ticketing and related services in the United States of America (“U.S”) and many other countries around the world. It owns, amongst others, TICKETMASTER (US registration no. 1,746,016 dated January 12, 1993 with a priority of October 21, 1991), TICKETMASTER.COM (US registration no. 2,464,562 dated June 26, 2001), both in international class 35, and TICKETMASTER (the People's Republic of China registration no. 918,534 dated December 21, 1996) in international class 9 (the “TICKETMASTER Marks”).
As a result of the Complainant's continuous and extensive marketing and sales and the resulting widespread use of its services, the public has come to recognize and associate the TICKETMASTER name and mark with the Complainant's services.
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy is given in the present case:
(1) The disputed domain name is confusingly similar to the TICKETMASTER marks because it incorporates the exact TICKETMASTER mark in its entirety. The Respondent's inclusion of the geographically descriptive term “China” does nothing to alleviate the confusing similarity between the disputed domain name and the TICKETMASTER marks but rather aggravates the confusing similarity.
(2) The Complainant further contends that it has not licensed or otherwise permitted the Respondent to use the TICKETMASTER marks or to apply for or use any domain name incorporating such Marks. The Respondent is not commonly known by the disputed domain name and has not acquired any trademark or service mark rights to that name.
(3) The Complainant finally contends that the disputed domain name was registered and is being used in bad faith.
As to bad faith registration, in addition to any actual knowledge that the Respondent may have of the Complainant's rights in the TICKETMASTER marks, the Respondent allegedly had constructive notice of the Complainant's rights in the TICKETMASTER Marks since at least 1991, when the Complainant filed its application to register TICKETMASTER with the United States Patent and Trademark Office.
As to bad faith use, the Respondent is supposed to have obtained the disputed domain name to intentionally attract Internet users to the Respondent's web page by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the Respondent's web site. The disputed domain name resolves to the website at “www.chinaticketonline.com”, offering travel and ticketing services. The Complainant also contends that the Respondent registered and used the disputed domain name to unlawfully siphon off visitors seeking the Complainant's web site. The Respondent's diversion of the Complainant's customers and potential customers is seen itself as evidence of bad faith. Finally, it is not possible to conceive of a plausible circumstance in which the Respondent could legitimately use the disputed domain name.
The Respondent did not reply to the Complainant's contentions.
Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:
(i) the domain name is identical or confusingly similar to the Complainant's trademark; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
The disputed domain name <chinaticketmaster.com> fully incorporates the Complainant's TICKETMASTER Marks in which the Complainant has exclusive rights. It also contains the geographic denomination “China”.
The addition of the term “China” does not eliminate the similarity between the Complainant's marks and the domain name; it is well established that a domain name that wholly incorporates a trademark may be confusingly similar to such trademark for purposes of the Policy despite the addition of geographic denominations (see Universal City Studios, Inc. v. Meeting Point Co., WIPO Case No. D2000-1245; Yahoo! Inc. v. Eitan Zviely, et al., WIPO Case No. D2000-0273; Canon U.S.A. Inc., Astro Business Solutions, Inc. and Canon Information Systems, Inc. v. Richard Sims, WIPO Case No. D2000-0819; Mastercard International Incorporated v. Yuan Zhou, WIPO Case No. D2008-0196).
Moreover, the specific top level domain name is not an element of distinctiveness that can be taken into consideration when evaluating the identity and similarity of the complainant's trademark and the disputed domain name (see Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429; Phenomedia AG v. Meta Verzeichnis Com, WIPO Case No. D2001-0374).
Therefore, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by the respondent, shall demonstrate its rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.:
(i) before any notice to the respondent of the dispute, the use by the respondent 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) the respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trade mark or service mark at issue.
Even though paragraph 4(c) of the Policy requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain name, it is consensus view among panelists that where the complainant makes a prima facie case to address the requirements of paragraph 4(a)(ii) of the Policy, the burden of proving that the respondent has rights or legitimate interests in the disputed domain name will lie with the respondent.
The Complainant has asserted that the Respondent has no rights or legitimate interests in the domain name, is not using the domain name in connection with a bona fide offering of goods or services and is not commonly known by the domain name, and has therefore fulfilled its obligations under paragraph 4(c) of the Policy. The Respondent has not denied these assertions and therefore failed to prove rights or legitimate interests under paragraph 4(a)(ii) of the Policy.
Accordingly, and also noting the Panel's findings under the third element below, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests under paragraphs 4(a)(ii) and 4(c) of the Policy.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which are evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, i.e.:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on its website or location.
The circumstances mentioned in paragraph 4(b) of the Policy are not exclusive, while the two elements of the third requirement of the Policy are cumulative conditions: the Complainant must show that the domain name was registered and is being used in bad faith.
The Panel is satisfied that the Respondent was aware of the Complainant when he registered the disputed domain name and therefore did so in bad faith under paragraph 4(a)(iii) of the Policy because of the following circumstances: The Complainant is well-known internationally and has established business activities throughout the world since 1976. Given that the Complainant was the official ticketing provider for the Athens 2004 Olympic Games and the Beijing 2008 Olympic Games while the Respondent is located in the People's Republic of China, it is inconceivable that the Respondent registered the disputed domain name which contains nothing but the Complainant's TICKETMASTER mark plus the reference to “China” without knowledge of the Complainant's rights in its trademarks. The Panel is therefore satisfied that the Respondent registered the disputed domain name with full knowledge of the Complainant's marks and thus in bad faith under paragraph 4(a)(iii) of the Policy.
As to bad faith use, by fully incorporating the TICKETMASTER Marks into the disputed domain name and by using the domain name to redirect users to his website at “www.chinaticketonline.com”, offering travel and ticketing services in direct competition with the Complainant's services, the Respondent was, in all likelihood, trying to divert traffic intended for the Complainant's website to his own for the purpose of diverting the Complainant's customers and potential customers (see Expedia, Inc. v. Alvaro Collazo, WIPO Case No. D2003-0716; Ticketmaster Corporation v. Contractor, WIPO Case No. D2008-0579; ACCOR S.A. v. springflex, WIPO Case No. D2008-0615). The use and exploitation of the Complainant's marks is to be regarded as use in bad faith under paragraph 4(b)(iv) of the Policy.
As a result, the Panel finds that the Complainant has met the requirements of paragraph 4(a)(iii) of the Policy as well.
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 <chinaticketmaster.com> be transferred to the Complainant.
Dated: November 28, 2008