WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. Darcy Andrade
Case No. D2008-0439
1. The Parties
Complainant is Ticketmaster Corporation of Los Angeles, California, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP of Chicago, Illinois, United States of America.
Respondent is Darcy Andrade of Ladera Ranch, California, United States of America.
2. The Domain Names and Registrar
The disputed domain names <freeticketmaster.com>, <ticketmasterbuy.com>, <ticketmasterdiscount.com>, <ticketmasterdiscounts.com>, <ticketmastershow.com>, <ticketmastertours.com>, <ticketmastertrips.com> and <ticketmastervacation.com> (the “Disputed Domain Names”) are registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 20, 2008. On March 25, 2008, the Center transmitted by e-mail to GoDaddy.com, Inc, a request for registrar verification in connection with the Disputed Domain Names. On March 25, 2008, GoDaddy.com, Inc., transmitted by e-mail to the Center its verification response confirming that 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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on March 28, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was with Complainant’s consent extended by three days to April 20, 2008, as notification actually occurred on March 31, 2008. Respondent did not submit a response, although the Center received from Respondent two e-mails, as described more fully below. Accordingly, the Center notified Respondent’s default on April 22, 2008.
The Center appointed Douglas M. Isenberg as the sole panelist in this matter on May 9, 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 the Rules, paragraph 7.
4. Factual Background
Complainant states that is “a global leader in live event ticket sales” and that it “sells tickets to more than 35,000 entertainment and sporting events each year”. Further, Complainant states that it sold more than 128 million tickets valued at more than US$1 billion in 2006. Complainant states that it uses the domain name <ticketmaster.com> in connection with its online ticketing services and that it is the owner the TICKETMASTER trademark in numerous countries (as listed in an exhibit provided by Complainant), including U.S. Reg. No. 1,746,016, for use in connection with “accounting services for ticket sales rendered by computer; and, promoting sporting events, musical concerts and other entertainment events; ticket agency services for sporting events, musical concerts and other entertainment events”. This mark was first used in August 1975 and was registered on January 12, 1993. Collectively, these registrations are referred to hereafter as the “TICKETMASTER Trademarks”.
The Disputed Domain Names were registered on the following dates: December 7, 2003 (<ticketmastershow.com>), September 6, 2006 (<ticketmastervacation.com> and <ticketmastertrips.com>) and September 6, 2007 (<ticketmasterdiscount.com>, <ticketmasterdiscounts.com>, <freeticketmaster.com>, <ticketmastertours.com> and <ticketmasterbuy.com>).
5. Parties’ Contentions
In addition to the factual background set forth above, Complaint contends, inter alia, as follows:
- Each of the Disputed Domain Names is identical or confusingly similar to the TICKETMASTER Trademarks because they incorporate the TICKETMASTER Trademarks in their entirety plus the addition of “generic terms” that “aggravate the confusing similarity of the domain name[s]”.
- Respondent has no rights or legitimate interests in respect of any of the Disputed Domain Names because Complainant “has not licensed or otherwise permitted Respondent to use the TICKETMASTER [M]ark[s] or to apply for or use any domain name incorporating the mark” and “Respondent is not commonly known by the [Disputed] Domain Names and has not acquired any trademark or service mark rights to those names”.
- Each of the Disputed Domain Names was registered and is being used in bad faith because (as shown in exhibits provided by Complainant), websites associated with each of the Disputed Domain Names “offer ticketing and travel agency services” that “unlawfully siphon off visitors seeking [Complainant’s] “www.ticketmaster.com” web site… [which] does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the [Disputed] Domain Names”. Further, Complainant contends that, in light of its widespread use of and the fame in the TICKETMASTER Marks, “it is not possible to conceive of a plausible circumstance in which Respondent could legitimately use the [Disputed] Domain Names” (internal citation omitted).
Respondent did not reply to the Complainant’s contentions. However, as stated above, the Center received two e-mails from Respondent, dated April 21, 2008, and April 22, 2008. In the first e-mail, Respondent simply forwarded a response from the registrar to Respondent regarding the subject proceedings. In the second e-mail, Respondent stated, “[t]his case has been resolved. Please note the following domains are no longer registered nor was there any profit made from said domains”. However, in response to this e-mail, Complainant submitted an e-mail to the Center on April 23, 2008 stating, “This case has not been resolved as the Respondent has neither transferred nor offered to transfer the subject names to Complainant”. Further, the Panel observes that all of the Disputed Domain Names are still registered with the registrar in Respondent’s name as of the date of this decision.
6. Discussion and Findings
Pursuant to the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the Disputed Domain Names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and (iii) the Disputed Domain Names have been registered and are being used in bad faith. Policy, paragraph 4(a).
A. Identical or Confusingly Similar
Based upon the trademark registrations cited by Complainant, it is obvious that Complainant has rights in the TICKETMASTER Trademarks. Furthermore, although not cited by Complainant, a number of previous panels under the Policy have recognized Complainant’s rights in and to the TICKETMASTER Trademarks. See, e.g., Ticketmaster Corporation v. Dmitri Prem, WIPO Case No. D2000-1550 (“the TICKETMASTER service mark is a strong, arbitrary and well known trade mark applied to ticket agency services offered through ticketing outlets and on-line web sites to provide tickets to sporting contests, musical concerts and other entertainment events”); and Ticketmaster Corporation v. WhoisGuard Protected, WIPO Case No. D2008-0350.
As to whether the Disputed Domain Names are identical or confusingly similar to the TICKETMASTER Trademarks, the relevant comparison to be made is with the second-level portion of the Disputed Domain Names only (i.e., “freeticketmaster”, “ticketmasterbuy”, “ticketmasterdiscount”, “ticketmasterdiscounts”, “ticketmastershow”, “ticketmastertours”, “ticketmastertrips” “ticketmastervacation”), as it is well-established that the top-level domain name (i.e., “.com”) should be disregarded for this purpose.
Each of the Disputed Domain Names differs substantively from the TICKETMASTER Trademarks only by the addition of a single word to the Disputed Domain Names. The Panel agrees with Complainant and the cases under the Policy cited by Complainant that these additions do nothing to dispel confusion and, indeed, may increase the confusion. This finding is consistent with similar findings by other panels that have had the opportunity to evaluate the TICKETMASTER Trademarks and corresponding domain names, including Ticketmaster Corporation v. Bill Hicks, WIPO Case No. D2004-0400 (ordering the transfer of 108 domain names, each of which contained the word “ticketmaster”) (“the fact that a domain name wholly incorporates a complainant’s registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy despite the addition of other words to such marks”).
Therefore, the Panel is convinced that Complainant has proven the first element of the Policy.
B. Rights or Legitimate Interests
Complainant alleges, inter alia, that Respondent has no rights or legitimate interests in respect of any of the Disputed Domain Names because Complainant “has not licensed or otherwise permitted Respondent to use the TICKETMASTER [M]ark[s] or to apply for or use any domain name incorporating the mark” and “Respondent is not commonly known by the [Disputed Domain Names] and has not acquired any trademark or service mark rights to those names”.
Furthermore, Respondent’s e-mail discussed above does not assert any rights or legitimate interests in the Disputed Domain Names and, to the contrary, implies that Respondent has none.
Under the Policy, “a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP”. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 2.1 (visited May 23, 2008).
Accordingly, as a result of Complainant’s allegations and without any evidence of Respondent’s rights or legitimate interests in the Disputed Domain Names, the Panel is satisfied that Complainant has proven the second element of the Policy.
C. Registered and Used in Bad Faith
Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the registrant has registered or the registrant has 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 registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant 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 registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location. Policy, paragraph 4(b).
In this case, Complainant does not allege with specificity which, if any, of the factors described in the Policy apply to Respondent. However, Complainant implies that Respondent’s activities constitute bad faith as set forth in Policy, paragraph 4(b)(iv), given the use of websites by Respondent in connection with the Disputed Domain Names that contain travel and ticketing-related services. In previous decisions under the Policy involving Complainant and the TICKETMASTER Trademarks, other panels have found that similar actions constitute bad faith. See, e.g., Ticketmaster Corporation v. IT-Norind, WIPO Case No. D2004-0068.
In addition, Respondent’s actions appear to constitute bad faith under Policy, paragraph 4(b)(ii), in light of the “pattern” shown by the multiple domain names at issue in this proceeding. Ticketmaster Corporation v. Bill Hicks, WIPO Case No. D2004-0400 (“Respondent’s registration of more than a hundred domain names, all containing some variation of the famous TICKETMASTER mark, is conclusive evidence both of an effort to prevent Complainant from reflecting its mark in these domain names and of a pattern of such conduct.”)
Furthermore, Respondent’s e-mails discussed above do not contradict Complainant’s allegations of bad faith and, to the contrary, implies that Respondent may have acted in bad faith.
Therefore, the Panel is convinced that Complainant has proven the third element 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 names <freeticketmaster.com>, <ticketmasterbuy.com>, <ticketmasterdiscount.com>, <ticketmasterdiscounts.com>, <ticketmastershow.com>, <ticketmastertours.com>, <ticketmastertrips.com> and <ticketmastervacation.com> be transferred to Complainant.
Douglas M. Isenberg
Dated: May 23, 2008