WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vivid Seats LLC v. Peter Smith and Maria da Silva
Case No. D2017-1083
1. The Parties
Complainant is Vivid Seats LLC of Chicago, Illinois, United States of America (“U.S.”), represented by Norvell IP llc, U.S.
Respondents are Peter Smith of Las Vegas, Nevada, U.S. and Maria da Silva of Recife, Brazil.
2. The Domain Names and Registrar
The disputed domain names <ivividseate.com>, <ivividseates.com>, <vividseate.co>, <vividseates.co>, <vividseates.com>, <wwwvividseate.co>, <wwwvividseate.com>, <wwwvividseates.co>, <wwwvividseates.com>, and <wwwvividseats.co> (collectively the “Domain Names” or singularly the “Domain Name”) are registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 1, 2017. On June 2, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On June 4, 2017, the Registrar transmitted by email to the Center its verification response confirming that Respondents are listed as the registrants 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” 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 and 4, the Center formally notified Respondents of the Complaint, and the proceedings commenced on June 12, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 2, 2017. Respondents did not submit any response. Accordingly, the Center notified Respondents’ default on July 3, 2017.
The Center appointed Harrie R. Samaras as the sole panelist in this matter on July 5, 2017. 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 Vivid Seats LLC (“VSL”), started in 2001. It is an independent full-service secondary ticket marketplace for live sports, concerts and theater events.
VSL owns the following trademark registrations: U.S. Trademark Registration No. 5,193,840 for VIVID SEATS, registered on May 2, 2017 and U.S. Trademark Registration No. 5,153,703 for VIVIDSEATS, registered on March 7, 2017 (collectively, the “VIVID SEATS Mark” or the “Mark”). The first use date of the VIVID SEATS Mark dates back to 2001.
Complainant maintains Internet websites at domain names incorporating the VIVID SEATS Mark, including its site located at “www.vividseats.com”. It registered that domain name in 2001 and has continuously operated the website since its launch in 2003. Complainant offers to customers an online interface and dedicated mobile applications to purchase tickets.
The registration date for the following Domain Names is March 26, 2017: <ivividseate.com>; <ivividseates.com>; <vividseate.co>; <vividseates.co>; <wwwvividseate.co>; <wwwvividseate.com>; <wwwvividseates.co>; <wwwvividseates.com>; and <wwwvividseats.co>. The registration date for <vividseates.com> is September 24, 2016. All of the Domain Names except <vividseates.com> redirect to the directly competing website at “www.ticketsmofo.com” offering online ticket sales and related goods and services. The Panel entered the <vividseates.com> Domain Name using the Bing search engine. The Domain Name currently resolves to a website called “MarketsWorld”. At the bottom of the first page of the website it states: “This site is neither an options exchange nor brokerage house. The binary options offered by this site are games of skill licensed and regulated under fixed odds betting by the Isle of Man GSC.” The site advertises that it takes a variety of credit cards. In large print on the first page it states “Free Money $__ Bonus Trade Now”. The amount of money changes (e.g.,USD 10, USD 50) each time the website it accessed using the <vividseates.com> Domain Name.
In the past, Complainant’s counsel has notified Respondents by email of Complainant’s trademark rights in the VIVID SEATS Mark. Most recently, such an email was sent on November 16, 2016 demanding the transfer of <vvividseats.com>, <vividseeats.com>, <vividseaats.com>, <vividseatts.com>, and <vividseatss.com> to Complainant. Respondents did not respond to this email.
5. Parties’ Contentions
Complainant submits that the consolidation of the Complaints against the Respondents is justified as the Domain Names are owned by the same party. The Domain Names are all registered with the same email address and are used for the same illegitimate scheme to steal Complainant’s customers.
Complainant has exclusively and continuously used the VIVID SEATS Mark since at least as early as 2001 and it has extensively promoted and advertised it. As a result, the Mark has come to be associated by members of the relevant consuming public with goods and services of only the highest quality. In 2016, more than a million tickets were sold through Complainant’s website and application. Complainant consistently devotes tens of millions of dollars annually to advertising and promoting its services under the VIVID SEATS Mark.
The Domain Names are confusingly similar to the Mark. Even when viewed in their entireties, it is appropriate to give greater weight to the important or dominant parts of a composite mark, for it is that part of the mark that will make the greatest impression. A de minimis difference between a domain name and a trademark is insufficient to overcome a finding of confusing similarity. That the Domain Names contain misspelled versions of Complainant’s names supports a finding of confusing similarity. It is well established that a disputed domain name is confusingly similar to a complainant’s trademark if it contains the complainant’s trademark with the addition of letters but sounds the same as the complainant’s trademark or looks similar to the complainant’s trademark. Here, except for the addition of the letter “i” or “e” or the non-distinctive element “www”, Respondents’ Domain Names look and sound confusingly similar to Complainant’s VIVID SEATS Mark. In addition, the deliberate misspelling of the Domain Names is not sufficient to distinguish them from the Mark. This is a clear case of typosquatting. Moreover, the addition of “www” does not differentiate the Domain Names from the Mark because it is a non-distinctive element standing for “world wide web”, and precedes many domain names in URL addresses.
Respondents are not affiliated or connected with Complainant in any way. Complainant has never licensed or authorized Respondents to use the VIVID SEATS Mark, or to register any domain name incorporating the Mark. Respondents cannot show any facts that establish any rights to or legitimate interests in the Domain Names. Accordingly, Complainant has satisfied the burden under this element of the Policy. Furthermore, Respondents did not use the Mark before Complainant adopted and used the Mark and the domain name <vividseats.com>. Complainant’s first use of the “Vivid Seats” name dates back to 2001, almost two decades ago and well before the registration of Respondents’ Domain Names in September 2016 and March 2017, respectively. Also, the expression “bona fide” in Policy, paragraph 4(c)(i) is sufficient to prevent a respondent who knowingly adopted a third party’s well-known mark as a domain name from claiming the benefit of mere use of or demonstrable preparations to use the domain name in connection with the offering of goods or services before notice of a dispute. There is no evidence that Respondents have been commonly known by the Domain Names or that it has any rights that might predate those of Complainant. Respondents only recently registered the Domain Names in September 2016 and March 2017, respectively, and, to VSL’s knowledge, only just began redirecting the Domain Names to the directly competing and infringing website “www.ticketsmofo.com”, long after Complainant first starting using the Mark. Lastly, Respondents are using the Domain Names to perpetrate a fraud and/or other illegitimate scheme by leading customers to think they are accessing the legitimate “www.vividseats.com” website when they are not. There can be no fair use when there is no legitimate connection between Respondents’ use of the Domain Names and Complainant and their trademarks.
Respondents knew of Complainant’s rights in the VIVID SEATS Mark before registering the Domain Names. Complainant registered the VIVID SEAT Mark and the <vividseats.com> domain name, well before Respondents registered the Domain Names. Respondents clearly had constructive notice or knowledge of Complainant’s registered trademark rights. As a matter of U.S. law, pursuant to 15 U.S.C. § 1072, Respondents, who utilize a U.S. based privacy service and U.S. based domain name registrar, have constructive notice of Complainant’s U.S. trademark registration. Moreover, a simple trademark search by Respondents would have revealed Complainant’s U.S. trademark registrations for the VIVID SEATS Mark.
The facts demonstrate that Respondents were aware of Complainant’s rights when they registered the Domain Names and set up a competing website that attempts to duplicate the VSL website. The only logical conclusion is that Respondents registered the Domain Names in bad faith with the intent to capitalize on Complainant’s fame and reputation. Respondents created a competing website with similar elements of Complainant’s website to give the false impression that visitors were actually visiting Complainant’s website. Respondents are using Complainant’s well-known VIVID SEATS Mark without authorization from Complainant, in clear bad faith and disregard for Complainant’s rights and in attempt to create a likelihood of confusion with the Mark as to the source, sponsorship, or endorsement of their financial services.
Also, Respondents have engaged in the practice of typosquatting, which is per se bad faith. The Domain Names contain a single letter addition and/or non-distinctive “www” addition to Complainant’s VIVID SEATS Mark, which is sufficient to constitute typosquatting. Moreover, Respondents’ bad faith is demonstrated because Respondents copied, without authorization, Complainant’s copyrighted materials from the VSL website, which are protected by U.S. Copyright Reg. No. TX0008212494. And, Respondents failed to respond to a demand letter.
This is the fourth UDRP Complainant has filed involving Respondents within the past year. Yet, Respondents continue to register domains incorporating the VIVID SEATS Mark. Clearly, Respondents’ actions demonstrate a clear pattern of bad faith.
Complainant requests transfer of the Domain Names to it.
Respondents did not reply to Complainant’s contentions.
6. Discussion and Findings
Where a party fails to present evidence in its control, the Panel may draw such inferences as it considers appropriate. Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques, WIPO Case No. D2000-0004. Insofar as Respondents have defaulted, it is therefore appropriate to accept the reasonable facts asserted by Complainant and to draw adverse inferences of fact against Respondents. Nonetheless, paragraph 4(a) of the Policy requires that a complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(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.
A. Consolidation of Complaints
Where a complaint is filed against multiple respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, section 4.11).
Noting in particular that the Domain Names have all been registered with the same email address, the Panel is satisfied that the Domain Names are subject to common control and that the consolidation is fair and equitable to the Parties, and accepts the consolidation of the Complaints.
B. Identical or Confusingly Similar
Complainant holds rights in the VIVID SEATS Mark by virtue of its U.S. Trademark Registration Nos. 5,193,840 and 5,153,703.
The Domain Names are virtually identical to Complainant’s VIVID SEATS Mark, differing only by adding the letters “i” and “e”; removing the letter “s”; and adding “www” to the VIVID SEATS Mark. Such insignificant modifications to trademarks is commonly referred to as “typosquatting” or “typo-piracy”, as such conduct seeks to wrongfully take advantage of errors by users in typing domain names into their web browser’s location bar. See Six Continents Hotels, Inc. v. null John Zuccarini d/b/a Country Walk, WIPO Case No. D2003-0161.Because Respondents have engaged in typosquatting, the Domain Names at issue are, by definition, confusingly similar to Complainant’s Mark. Edmunds.com, Inc v. Triple E Holdings Limited, WIPO Case No. D2006-1095. Furthermore, the Domain Names are both visually and phonetically similar to the VIVID SEATS Mark, further heightening the confusing similarity. See, Expedia, Inc. v. Alvaro Collazo, WIPO Case No. D2003-0716 (finding the domain name <expediua.com> confusingly similar to the trademark EXPEDIA and noting the visual and phonetic similarity of the two).
The Panel therefore holds that Complainant has satisfied paragraph 4(a)(i) of the Policy.
C. Rights or Legitimate Interests
Complainant asserts that Respondents do not have any rights or legitimate interests in the Domain Names because: (1) Complainant has never licensed or otherwise authorized Respondents to use the VIVID SEATS Mark or to register any domain name incorporating the Mark; (2) Respondents have not been commonly known by the Domain Names nor do they have any rights that might predate those of Complainant. Respondents only recently registered the Domain Names and they did not use the Mark before Complainant adopted and used the Mark and the domain name <vividseats.com>. Complainant’s first use of the “Vivid Seats” name dates back to 2001, almost two decades ago and well before the registration of Respondents’ Domain Names in September 2016 and March 2017; (3) Respondents are not making a legitimate noncommercial or fair use of the Domain Names without intent for commercial gain because the majority of the Domain Names are being used on a site that offers competitive products and services, and the <vividseates.com> Domain Name also resolves to a commercial site; and (4) Respondents’ use of the Domain Names have not been in connection with a bona fide offering of goods or services, rather with an infringing one.
Complainant’s assertions and evidence, without contrary evidence from Respondents, are sufficient to permit a finding in Complainant’s favor on this issue. Alcoholics Anonymous World Services, Inc. v. Lauren Raymond, WIPO Case No. D2000-0007.
The Panel therefore holds that Complainant has satisfied paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad Faith
By failing to submit a Response, Respondents have failed to invoke any of the circumstances that could demonstrate they did not register and use the Domain Names in bad faith.
Respondents registered most of the Domain Names on March 26, 2017 and the Domain Name <vividseates.com> on September 24, 2016. Without contrary evidence, this is well after Complainant maintains that it began using the VIVID SEATS Mark in 2001. Respondents incorporated the entirety of the Mark in each of the Domain Names making only minor variations mentioned above. Furthermore, Respondents are clearly targeting the VIVID SEATS Mark by using the Mark in the Domain Names with inconsequential changes, to redirect the public to a website that is offering competitive products and services. For these reasons the Panel finds it more likely than not that Respondents were aware of Complainant and its rights in the VIVID SEATS Mark when it registered the Domain Names.
With regard to bad faith use, Respondents are using Domain Names that are confusingly similar to Complainant’s VIVID SEATS Mark. Most of the Domain Names are used in conjunction with a site selling products and services that are in competition with Complainant’s products and services. The <vividseates.com> Domain Name is currently in use with a commercial betting site that Respondents no doubt benefit monetarily from. The Panel concludes that by using the Domain Names as found, Respondents have intentionally attempted to attract, for commercial gain, Internet users to their websites by creating a likelihood of confusion with Complainant’s VIVID SEATS Mark as to the source, sponsorship, affiliation or endorsement of such site or the products or services advertised on such site, within the meaning of paragraph 4(b)(iv) of the Policy. Advance Magazine Publishers Inc. v. Red Wagon Films, WIPO Case No. D2006-0893, see also, Lowen Corporation d/b/a Lowen Sign Company v. Henry Chan, WIPO Case No. D2004-0430.
Further, the Panel finds that by engaging in a pattern of typosquatting – registering domain names containing slightly modified versions of Complainant’s Mark repeatedly over a period of four years (September 14, 2013, September 16, 2014, August 18, 2015, September 24, 2016, and March 26, 2017) – Respondents’ bad faith registration is manifest. Respondents’ actions were deliberate and intentionally designed to confuse Internet users. Fuji Photo Film U.S.A., Inc. v. LaPorte Holdings, WIPO Case No. D2004-0971; Pocket Kings Limited v. Blue Giant Holdings Inc., WIPO Case No. D2010-2059.
The Panel therefore holds that Complainant has satisfied paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names, <ivividseate.com>, <ivividseates.com>, <vividseate.co>, <vividseates.co>, <vividseates.com>, <wwwvividseate.co>, <wwwvividseate.com>, <wwwvividseates.co>, <wwwvividseates.com>, and <wwwvividseats.co>, be transferred to Complainant.
Harrie R. Samaras
Date: July 14, 2017