WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Barry’s Ticket Service, Inc. v. Li Shuang Yu
Case No. DCO2010-0004
1. The Parties
The Complainant is Barry’s Ticket Service, Inc., Encino, California, United States of America, represented by Baker & Hostetler, LLP, United States of America.
The Respondent is Li Shuang Yu, Sichuan, People’s Republic of China, appearing pro se.
2. The Domain Name and Registrar
The disputed domain name <barrystickets.co> is registered with Tucows Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 10, 2010. On August 11, 2010, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the disputed domain name. On August 11, 2010, Tucows 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 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 August 13, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 2, 2010. The Response was filed with the Center on August 28, 2010.
The Center appointed Tobias Zuberbühler as the sole panelist in this matter on September 17, 2010. 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
The Complainant is an entertainment ticket agency service and the owner of the US trademarks BARRYS TICKETS (registered since February 19, 2008) - which it claims to have been using since 1984 - and WWW BARRYS TICKETS.COM (registered since July 8, 2008). In addition, the Complainant has been marketing its products for the last 12 years under the domain name <barrystickets.com> and claims to have had over 14 million page views in 2010 to date.
The Complainant further asserts having completed 450,000 ticket purchases and sale transactions from 2003 to 2009 and having spent over USD 3.5 million in advertising and promoting the BARRYS TICKET trademark from 2006 to 2009.
The disputed domain name <barrystickets.co> was registered on July 20, 2010 and is currently connected to the website of TicketNetwork, which appears to be a direct competitor of the Complainant.
5. Parties’ Contentions
According to the Complainant (citing UDRP precedent to support its position), the disputed domain name is identical, in the sense of the Policy, to the Complainant’s trademark BARRYS TICKETS, since the fact that the disputed domain name uses the country code top level domain suffix <.co> does not create a meaningful distinction.
Further, the Complainant contends that the Respondent is not affiliated with the Complainant, and has not been authorized by the Complainant in any way to use the BARRYS TICKETS trademark. Typing in the disputed domain name <barrystickets.co> resolves to a third party competitor’s site selling tickets for the same events as the Complainant. Such use is neither a bona fide offering of goods and services nor a legitimate non-commercial or fair use pursuant to paragraph 4(c)(i) and 4(c)(iii) of the Policy in view of the Complainant.
Finally, the Complainant contends that the Respondent’s conduct in this case exploits the likelihood of confusion between the disputed domain name and the BARRYS TICKETS brand, which amounts to bad faith registration and use under the Policy.
The Respondent alleges that BARRYS TICKETS is not a well-known brand or trademark and that the majority of people in the world (including the US) are not aware of this brand or trademark.
According to a website ranking presented by the Respondent, the Complainant’s domain name <barrystickets.com> ranked very low in the Respondent’s view and has no traffic at all, so the allegation that the disputed domain name was registered to gain traffic is false.
Next, the Respondent argues that "barrys tickets" is a general English term which may be used lawfully by anyone.
Moreover, the fact that neither the Complainant nor anyone else has registered <barrystickets.net> or <barrystickets.us> indicates in the Respondent’s view that the Complainant and its trademark are not well known.
Finally, the Respondent allegedly plans to build a website using the disputed domain name to "take prevention and avoidance in light of relevant regulations and laws to cause any bad influences to other institutions and individuals" [sic].
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name is identical to the Complainant’s registered trademark BARRYS TICKETS except for the country code suffix “.co”. It is well established that the specific top level of a domain name does not affect the determination of identity or similarity between a domain name and a trademark (cf. e.g. Automobil Lamborghini Holding S.p.A. v. Unity 4 Humanity, Inc., WIPO Case No. DTV2008-0010).
The Respondent’s argument that “barrys tickets” is a combination of generic English words has no bearing on this case. It is clear that the combination of the words “barry’s” and “tickets” can be registered as a trademark, as the Complainant has shown in this case.
The Panel finds that the disputed domain name is thus identical to a trademark or service mark in which the Complainant has rights and that the Complainant has accordingly fulfilled paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Under the circumstances of this case, there are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name.
The Respondent’s various arguments in connection with a purported legitimate interest (that the Complainant’s trademark is not well known, that traffic under <barrystickets.com> is low, and that no one has registered <barrystickets.net> or <barrystickets.us>) are clearly invalidated by the fact that the Respondent has linked the disputed domain name to a competitor of the Complainant. Furthermore, contrary to the Respondent’s allegation, <barrystickets.net> or <barrystickets.us> have been registered and are offered for sale on parking pages.
The Respondent’s allegation that it is planning to build a legitimate website under the disputed domain name is implausible and completely unsubstantiated.
Under these circumstances, the Panel finds that the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
It can also be inferred that the Respondent was aware of the Complainant’s trademarks when registering the disputed domain name.
Internet users are directed to the website of a direct competitor of the Complainant under the disputed domain name. This is sufficient evidence that the Respondent, by registering and using the disputed domain name, attempts to attract Internet users for commercial gain to his website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of his website or the products or services on his website, which demonstrates bad faith.
In summary, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith, thus fulfilling paragraph 4(a)(iii) of the Policy.
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 <barrystickets.co> be transferred to the Complainant.
Dated: September 30, 2009