WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Ticketmaster Corporation v. Cecil Spafford

Case No. D2002-0944

 

1. The Parties

The Complainant is Ticketmaster Corporation, an Illinois corporation located in Los Angeles, CA, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson of Virgina 22314, United States of America ("USA").

The Respondent is Cecil Spafford, East Perth, Australia. The administrative and technical contact is Ed, Chip, ChipE-D Inc., of Austin, TX, USA.

 

2. The Domain Name and Registrar

The disputed domain name <ticket--master.com> (the "Domain Name") is registered with Go Daddy Software of Scottsdale, AZ, USA.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 10, 2002. On October 14, 2002, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the Domain Name at issue. On October 15, 2002, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 15, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was November 4, 2002. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on November 5, 2002.

The Center appointed the undersigned as the sole panelist in this matter on November 11, 2002. The Panel finds that it was properly constituted. The Sole Panelist 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 and its affiliates and licensees provide tickets to more than 350,000 events each year, including professional sports, arts, family, concert and other events. The Complainant and its affiliates and licensees serve more than 7,000 clients worldwide and act as the exclusive ticketing service for hundreds of leading arenas, stadiums, performing arts venues, and theaters. Through the Complainantís network of approximately 3,100 retail "Ticket Center" outlets located in 210 cities in the United States of America, Canada, the United Kingdom, Ireland, Mexico and Australia, 20 worldwide telephone call centers and its affiliates' and licensees' various websites, including <ticketmaster.com>, <ticketmaster.ca>, <ticketmaster.com.mx>, <ticketmaster.ie>, <ticketmaster.co.uk> and <ticketmaster7.com>, more than 86.7 million tickets were sold in 2001 valued at more than $3.6 billion. Approximately 43% of the Complainant's sales are completed via the Internet.

The Complainant has used the trade name and service mark TICKETMASTER, and variations thereof, for its ticketing services throughout the United States of America and internationally for several years. The Complainant has registered and/or filed applications to register the TICKETMASTER Mark in over 80 countries, including the United States and the Australia.

The Complainant uses the domain name <ticketmaster.com> in connection with online ticketing services and Complainantís affiliate and trademark licensee also maintains a similar website for its services in Australia at ticketmaster7.com.

The Domain Name resolves to "www.austinticketco.com", a virtual ticket broker web site apparently based in Austin, TX, United States of America.

 

5. Partiesí Contentions

A. Complainant

The TICKETMASTER mark is a strong and well-known trademark applied to ticket agency services offered through ticketing outlets and on-line websites.

The Domain Name is virtually identical and confusingly similar to Ticketmaster's TICKETMASTER name and mark under Section 4(a)(i) of the Policy. The only difference between the TICKETMASTER Mark and the Disputed Domain Name at issue is Respondent's addition of the generic top-level-domain ".com" and the addition of two hyphens between "TICKET" and "MASTER." The "addition of the generic top-level-domain (gTLD) .com is without legal significance in determining similarity." Further, the addition of two hyphens is a typographical variation that is plainly designed to lead consumers who misspell or mistype the Complainant's registered and famous name and mark to other websites. Such minimal differences are of no consequence. A typographical variation is likely to be overlooked and also likely to be erroneously typed by Internet users who intend to accede the Complainant's website . . . and are mistyping it. Moreover, the use of hyphens has been found by previous Administrative Panels to be insufficient to render a domain name different to a trademark.

In a very similar case involving another typographical variation of the TICKETMASTER Mark, the Administrative Panel transferred <ticket-master.com> to the Complainant and explained that "[t]he domain name and trademark at issue are so similar that confusion would be inevitable." Ticketmaster Corporation v. Dmitri Prem, WIPO Case No. D2000-1550 (January 16, 2001).

The Respondent has no rights or legitimate interest in the domain name <ticket--master.com> under Section 4(a)(ii) of the Policy. The Respondent has not used and is not known to the public as "TICKET--MASTER," either in business or personally. In addition, the Domain Name was created on March 20, 2002, Ė long after the Complainant's first use and registration of its marks. Moreover, Respondent has not applied for or obtained any state or federal trademark or service mark registrations for TICKET--MASTER. Thus, Respondent, cannot, per UDRP Sections 4(c)(ii), show bona fide use of its Domain Name prior to notification of this dispute.

In addition, the Complainant has not licensed or otherwise authorized use of the Domain Name to Respondent. Respondent is using the Disputed Domain Name to promote a virtual entertainment events ticket broker website, "austinticketco.com", a competitor of the Complainant. The fact that the Complainant, and the website for which Respondent's domain name resolves, both sell event tickets increases the potential for confusion.

The Respondent's intentional use of <ticket--master.com> is likely to mislead customers into believing that Respondent is the Complainant, that the redirected website, "austinticketco.com", is owned by the Complainant, or that the Respondent or "austinticketco.com" is legitimately associated with the Complainant's TICKETMASTER business. This is not legitimate use within the meaning of Section 4(c)(i) of the Policy. It is also apparent that Respondent is diverting Internet traffic to a competitor of the Complainant to attract a fee, since such arrangements are common.

By using a misspelling of the Complainant's well-known mark, Respondent seeks to attract Internet users who mistype or misspell the Complainant's name when seeking to find the Complainant's website on the World Wide Web. Such registration and use of the misspelled domain name constitutes "typosquatting," which in and of itself constitutes bad faith registration and use.

Respondent's diversion of traffic to "austinticketco.com", a website offering goods and services competing with those of the Complainant, is also indicative of bad faith pursuant to Sections 4(b)(iii) and (iv) of the Policy. Respondent's use of the Domain Name to divert traffic to the Complainant's competitor also demonstrates the Respondent's intention to disrupt the business of the Complainant, and tarnish the distinctiveness and reputation of the Complainant's trademark and business. Based on the Complainant's long use and registration of the TICKETMASTER Mark, it can be assumed that the Respondent has actual knowledge of the Complainant's rights. At the very least, a trademark search on the United States Patent and Trademark Office website, "www.uspto.gov", or a trademark search of trademarks registered in Australia would have disclosed the Complainant's trademark rights.

B. Respondent

The Respondent did not reply to or dispute the Complainantís contentions.

 

6. Discussion and Findings

In accordance with Paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the Domain Name, the Complainant must prove that each of the three following elements are satisfied:

1. The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (see below, section 6.1); and

2. The Respondent has no rights or legitimate interests in respect of the Domain Name (see below, section 6.2); and

3. The Domain Name has been registered and is being used in bad faith (see below, section 6.3).

Paragraph 4(a) of the Policy clearly states that the burden of proving that all these elements are present lies with the Complainant.

Pursuant to Paragraph 15(a) of the Rules, the Panel shall decide the complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom, as it considers appropriate.

6.1 Is the Domain Name Identical or Confusingly Similar to a Trademark in Which Complainant has Rights?

This question raises two issues: (1) does the Complainant have rights in a trademark or service mark; and (2) is the Domain Name identical or confusingly similar to such trademark or service mark.

On the first point, the record clearly shows that Complainant has rights in the TICKETMASTER mark.

On the second point, the Panel agrees with the Complainantís contention that a minor difference in spelling has no trademark significance and this case resembles what is now referred to as typo-squatting. Internet users are likely to disregard the double hyphen and read the Domain Name as one word, which then would be identical to the Complainantís mark. The use of the hyphen to separate a trademark in two has been found to be confusingly similar. See, e.g., WIPO Case Nos. D2000-0075 (<info-space.com>); D2000-1550 (<ticket-master.com>) and D2001-0684 (<s-m-i-r-n-o-f-f.com>). Even if one considers the first part of the Complainantís mark ("ticket") as descriptive, with the addition of the word "master" this descriptive nature of the mark is not longer present.

In addition, the use of a double-hyphen is an unnatural use of punctuation, which may indicate an attempt by the Respondent to "circumvent" the Complainantís TICKETMASTER mark.

The Respondentís registration and use of the Domain Name may create a likelihood of confusion among consumers by falsely suggesting that the Complainant is the source, sponsor, affiliate or endorser of Respondent, its services and any websites that may be offered at or linked to the Domain Name [1]. Given the similarity between the services offered by the Complainant and its affiliates and licensees under the TICKETMASTER mark and those offered on the site to which the Domain Name resolves, there is a likelihood of at least initial interest confusion, as this concept was defined in several court decisions in the United States of America (which are relevant given that the Complainant, the registrar and the address of the site to which the Domain Name resolves (presumably with the Respondentís knowledge) are all located in the United States of America.

The Panel thus finds that the Complainant has rights in the TICKETMASTER trademarks and service marks, and that the Domain Name is confusingly similar to such trademarks and service marks.

6.2 Does the Respondent Have Rights or Legitimate Interests in the Domain Name?

The Complainants submits that the Respondent has no rights or legitimate interests in the Domain Name based on the Complainantís prior use of the TICKETMASTER marks and was never authorized to use Respondentís marks. The Respondent, whom did not file a Response, did not dispute this contention nor provide information as to its interests to use the Domain Name.

According to paragraph 4(c) of the Policy, a Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:

"(i) before any notice to you [Respondent] of the dispute, your use 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trade mark or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue."

There is no evidence that the Respondent has made any bona fide offering of goods or services under the name TICKETMASTER, and the Complainant contends that the Respondent is not commonly known by the Domain Name. There is no evidence that the Respondent is making a legitimate noncommercial or fair use of the Domain Name.

Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name.

6.3 Is There Evidence of Registration and Use of the Domain Name in Bad Faith?

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of a domain name in bad faith, namely:

(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 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 the Respondentís web site or other on-line location, by creating a likelihood of confusion with the complainantís mark as to the source, sponsorship, affiliation, or endorsement of the Respondentís web site or location or of a product.

The Complainant must prove that the Domain Name was both registered and used in bad faith.

It is not difficult to conclude that the Domain Name was registered in bad faith. The Complainantís mark is famous and has been used in several countries throughout the world, including the United States and Australia. The Complainant uses the domain name <ticketmaster.com> to advertise and offer its services over the Internet.

Respondentís use of the Domain Name clearly demonstrates an intentional attempt to attract, for commercial gain, Internet users to a website by creating a likelihood of confusion with the Complainantís mark as to the source, sponsorship affiliation or endorsement of the registrantís website. According to Paragraph 4(b)(iv) of the Policy, that in itself constitutes evidence of bad faith registration and bad faith use.

In light of the above, the Panel finds that the Domain Name was registered and is being used in bad faith.

One issue that remains is that the Respondent is identified as Cecil Spafford, and the record shows that this person is the registrant. However, the name of a corporation (namely "Tickets Inc.") is also mentioned in the whois data provided by the Registrar. In the absence of any evidence to suggest otherwise, the Panel assumes that the person mentioned as the registered owner of the Domain Name, namely Cecil Spafford, is indeed the owner for the purposes of this administrative proceeding. The order contained below is thus valid inter partes and in accordance with the Policy.

 

7. Decision

On the basis of the elements set out above, the Panel finds that:

1. The domain name <ticket--master.com> is confusingly similar to the trademark TICKETMASTER, in which the Complainant has rights;

2. The Respondent does not have any rights or legitimate interests in respect of the Domain Name;

3. The Domain Name was registered and is being used in bad faith.

Therefore, in accordance with Paragraphs 4(a) and 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <ticket--master.com> be transferred to the Complainant.

 


 

Daniel Gervais
Sole Panelist

Dated: November 22, 2002

 


Footnote:

1. See, e.g., ACCOR v. SEOCHO, WIPO Case No. D2002-0517 (August 12, 2002).