WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vivid Seats Limited v. Domain Administrator, Domains by Proxy, LLC / Peter Smith
Case No. D2016-1125
1. The Parties
The Complainant is Vivid Seats Limited of Chicago, Illinois, United States of America, represented by Norvell IP llc, United States of America.
The Respondent is Domain Administrator, Domains by Proxy, LLC of Scottsdale, Arizona, United States of America / Peter Smith of Douglas, Isle of Man.
2. The Domain Names and Registrar
The disputed domain names <vividseasts.com>, <vividsets.com> and <viviidseats.com> 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 3, 2016. On June 6, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On the same day, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 7, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on June 13, 2016 identifying the second-named Respondent Peter Smith as the registrant of each of the disputed domain names.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 17, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 7, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 8, 2016.
The Center appointed Desmond J. Ryan as the sole panelist in this matter on July 18, 2016. 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 a Delaware corporation located in the United States of America. It operates as an online ticket seller, selling tickets online to events such as theatrical events and sporting events at its website at <vividseats.com>. The Complainant owns 14 further domain names each of which contains the word “vivid”. It claims to be one of the top three secondary ticket marketplaces in the United States. It has operated since 2001 and has United States trademark registrations for the words VIVID SEATS the first of which dates back to April 2009.
Each of the disputed domain names was registered on September 14, 2013. At the time of filing of the Complaint, each of the disputed domain names resolved to the website at <ticketsmofo.com>. The Respondent is the registrant for that domain name. The website at that domain name is an online ticket sales site offering tickets online to sporting and entertainment events.
On May 31, 2016 the Complainant’s lawyers sent a letter of demand to the Respondent demanding the transfer of the disputed domain names and redesign of the website “www.ticketsmofo.com”. The Respondent did not comply with those demands.
5. Parties’ Contentions
The Complainant submits:
(i) the three disputed domain names may be subject to the same complaint pursuant to paragraph 3(c) of the Rules which provides that:
“The Complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder”;
(ii) the Respondent’s website is essentially a “mirrored” copy of the Complainant’s website to give the impression to visitors that they are accessing the genuine website of the Complainant whereby luring visitors into believing that they are dealing with the Complainant when they are not;
(iii) each of the disputed domain names contains, as its essential element, a typographical variation of the Complainant’s VIVID SEATS trademark and are substantially identical in appearance and connotation to it;
(iv) the Respondent has no affiliation or connection with the Complainant and the Complainant has never licensed or authorized the Respondent to use the Complainant’s VIVID SEATS trademark or to register any domain name containing the VIVID SEATS trademark;
(v) the use of the disputed domain names is clearly for commercial gain and is not a fair use;
(vi) there is no evidence that the Respondent is commonly known by the disputed domain names;
(vii) the Respondent knew of the Complainant’s rights in the VIVID SEATS trademark prior to registration of the disputed domain names. The Respondent’s registrations of the disputed domain names amounts to typo-squatting;
(viii) the Respondent has used the disputed domain names for commercial gain by intentionally creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation and endorsement of the Respondent’s services;
(ix) further evidence of bad faith use of the disputed domain names is the Respondent’s replication of the Complainant’s website material in infringement of the Complainant’s copyright;
(x) the Respondent’s use of a Privacy Protection Service in the registration of the disputed domain names and his failure to respond to the Complainant’s demand letter are further indications of bad faith registration and use.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Each of the disputed domain names comprises a minor and subtle variation of the Complainant’s trademark VIVID SEATS. These variations comprise, respectively, the term “vividseats” with the addition of an extra letter “s” in the first disputed domain name, the addition of an extra letter “i” in the third disputed domain name and the omission of a letter “a” in the second disputed domain name. The disputed domain names are, as the Complainant submits:
“ …. in essence, identical to the Complainant’s VIVID SEATS trademark in appearance, sound and connotation”.
The Complainant has clearly established rights in the trademark VIVID SEATS by the registrations which it holds in the United States.
The Panel therefore finds that each of the disputed domain names is substantially identical or confusingly similar to the Complainant’s trademark in which it has rights.
B. Rights or Legitimate Interests
The Complainant has established a clear prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain names. In this regard the record speaks for itself. The Respondent must have known of the Complainant’s rights in its VIVID SEATS trademarks since each of the disputed domain names comprises essentially a trifling and subtle variation of that trademark. The Respondent has not attempted to rebut the Complainant’s prima facie showing.
The Panel therefore finds that the Complainant has sufficiently established that the Respondent has no rights or legitimate interests in any of the disputed domain names.
C. Registered and Used in Bad Faith
This is a classical case of typo-squatting. As discussed in Section B, the Respondent must have known of the Complainant’s rights in its VIVID SEATS trademark when it registered each of the disputed domain names.
Each of the disputed domain names redirects to the Respondent’s website. At that website the Respondent imitates the Complainant’s website and offers for sale the same class of services that the Complainant offers at its website. The unmistakable conclusion is therefore that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation and endorsement of its website and the services offered at that website.
The Panel therefore finds that each of the disputed domain names has been registered and is being used in bad faith.
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 names, <vividseasts.com>, <vividsets.com> and <viviidseats.com> be transferred to the Complainant.
Desmond J. Ryan AM
Date: July 28, 2016