WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Philadelphia Orchestra Association v. PCI Consulting Group
Case No. D2011-0549
1. The Parties
Complainant is Philadelphia Orchestra Association of Philadelphia, Pennsylvania, United States of America, represented by Cozen O'Connor, United States of America.
Respondent is PCI Consulting Group, of Wilmington, North Carolina, United States of America.
2. The Domain Name and Registrar
The disputed domain name <academyofmusic.com> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 25, 2011. On March 25, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. Complainant filed an amended Complaint on March 26, 2011. On March 28, 2011, GoDaddy.com, Inc. 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, together with the amended Complaint, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 30, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was April 19, 2011. On April 19, 2011, Complainant and Respondent submitted a joint suspension request. The proceeding was suspended until April 27, 2011. The proceeding was reinstituted on April 28, 2011, and the new Response due date was May 8, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 9, 2011.
The Center appointed Jeffrey M. Samuels as the sole panelist in this matter on May 16, 2011. 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, the Philadelphia Orchestra Association, is the owner of the Academy of Music in Philadelphia, Pennsylvania. Complainant owns United States Trademark Registration No. 2,138,486 for the mark ACADEMY OF MUSIC, as used as early as 1857 in connection with “providing facilities for concerts, operas, ballets and orchestral performances, other cultural activities, as well as for private social and civic functions.” The mark was registered on February 24, 1998. See Complaint, annex D.
The disputed domain name <academyofmusic.com> was registered on July 4, 1997.
Complainant’s counsel sent a “cease and desist” letter to Respondent on February 3, 2011. See Complaint, annex E. No response was received.
5. Parties’ Contentions
Complainant asserts that the disputed domain name is identical or confusingly similar to its ACADEMY OF MUSIC mark. It notes that the disputed domain name incorporates the entirety of the mark.
Complainant further contends that Respondent has no right or legitimate interests in respect of the disputed domain name. It points out that Respondent is not affiliated with Complainant, and there is no evidence to suggest that Respondent has registered the disputed domain name to advance legitimate interests or for the bona fide offering of legitimate goods or services. Complainant also maintains that since Respondent anonymously registered the disputed domain name and has not provided any contact information on its website at “www.academyofmusic.com”, Respondent cannot claim to have been commonly known by the disputed domain name or similar name related thereto.
According to Complainant, Respondent has solely used the disputed domain name in connection with providing links to an unauthorized provider of tickets to events at the Academy of Music. The unauthorized provider is not affiliated with Complainant and claims that it may offer tickets at prices above face value. The sale of Academy of Music event tickets by this unaffiliated ticket service, Complainant asserts, is not a bona fide offering of goods or services capable of giving rise to a right or legitimate interest in the disputed domain name. Moreover, displaying links to an unauthorized provider of tickets of events at the Academy of Music, demonstrates an attempt to deceive consumers into believing that by visiting the “www.academyofmusic.com” website that consumers are visiting a website that is sponsored, affiliated, or otherwise associated with the Academy of Music in Philadelphia, Pennsylvania when so such relationship exists. Moreover, such deception has the effect of deceiving consumers by inducing them to unwittingly pay more for their tickets than they would otherwise pay through an official authorized Academy of Music ticket seller.
Complainant argues that Respondent’s adoption and use of the disputed domain name is in bad faith, has continued with full knowledge of Complainant’s prior rights, and is in willful infringement of Complainant’s prior rights. Complainant asserts that an Internet user that seeks Complainant’s products or services and who visits the website at the disputed domain name will find links that allow the consumer to purchase tickets to events at the Academy of Music sold by an unauthorized ticket seller at prices above face level. As a result, Complainant complains, consumers will be deceived into paying more for their tickets than they should. Complainant further alleges that Respondent’s use of the disputed domain name is likely to give rise to confusion as to an association, affiliation, or sponsorship between Complainant and Respondent.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel concludes that the disputed domain name <academyofmusic.com> is for all intent and purposes of identical to the ACADEMY OF MUSIC mark. The disputed domain name incorporates the mark in its entirety, adding only the generic top-level domain “.com”.
The Panel further determines that Complainant has rights in the ACADEMY OF MUSIC mark. The evidence indicates that Complainant owns a United States registration for the mark and has common law rights in the mark as well as a result of its longstanding use.
B. Rights or Legitimate Interests
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. The evidence reveals that the disputed domain name resolves to a site with links to an unauthorized ticket seller to events at the Academy of Music. Such use of the disputed domain name does not constitute use in connection with a bona fide offering of goods or services. There also is no evidence that Respondent is commonly known by the disputed domain name or that Respondent is making a legitimate noncommercial or fair use of the domain name.
C. Registered and Used in Bad Faith
The Panel holds that the disputed domain name was registered and is being used in bad faith. As noted above, the disputed domain name is virtually identical to Complainant’s mark, which has been used by Complainant for two and a half centuries, and resolves to a site with links to an unauthorized ticket seller to events at the Academy of Music. As such, the Panel concludes that, by using the domain name, Respondent intentionally attempted to attract, for commercial gain, Internet users to its site or the site of others, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of such sites or of a product or service found at such sites, within the meaning of paragraph 4(b)(iv) of the Policy.
The evidence further indicates that the tickets sold by the unauthorized ticket seller are priced at above face value and that consumers will be deceived into paying more for tickets than they should. This is further evidence of bad faith registration and use.
For the foregoing reasons, in accordance with paragraphs 4(I) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <academyofmusic.com> be transferred to the Complainant.1
Jeffrey M. Samuels
Dated: May 26, 2011
1 Subsequent to the Panel’s decision, Complainant’s counsel communicated to the Center a message to the effect that the parties had reached agreement to transfer the domain name to the Complainant and accordingly Complainant requested that the Complaint be withdrawn. Rule 17(a) requires that an administrative proceeding be terminated in view of the parties settlement only if such settlement is reached before the Panel’s decision. In the view of the Panel having already been appointed and rendered its decision at the time the Complainant’s request was received the Panel finds the more appropriate course is to request the Center to release the decision to the parties. The Panel notes, in any event, that its concluding order corresponds to the mentioned agreement to transfer the domain name to the Complainant.