WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vivid Seats LLC v. Domain Administrator, Domains by Proxy, LLC / Peter Smith
Case No. D2017-0109
1. The Parties
The Complainant is Vivid Seats LLC of Chicago, Illinois, United States of America (“United States”) represented by Norvell IP llc, United States.
The Respondent is Domain Administrator, Domains by Proxy, LLC of Scottsdale, Arizona, United States / Peter Smith of Douglas, Isle of Man, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).
2. The Domain Names and Registrar
The disputed domain names <vividseaats.com>, <vividseatss.com>, <vividseatts.com>, <vividseeats.com> and <vvividseats.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 January 19, 2017. On January 20, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On January 23, 2017, 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 January 24, 2017 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 January 25, 2017.
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 January 26, 2017. In accordance with the Rules, paragraph 5, the due date for Response was February 15, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 16, 2017.
The Center appointed WiIliam A. Van Caenegem as the sole panelist in this matter on February 27, 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
The trademarks VIVID SEATS and VIVIDSEATS are registered in the United States in the name of the Complainant: Reg No 3614140, first registered on April 28, 2009 in relation to goods and services in International Classes 041, 009, 035, 039, 041, and 042.
The date of registration of all the disputed domain names in this proceeding is September 16, 2014.
5. Parties’ Contentions
The Complainant asserts that it is one of the largest independent full-service secondary ticket marketplaces for live sport, concert and theater events. The Complainant asserts that it sells hundreds of thousands of tickets per month and has grown exponentially since launching its website. The Complainant maintains an Internet presence and a technology platform for the purpose of offering and performing its services. The Complainant asserts that its website has a distinctive appearance or trade dress, which is also protected by copyright (registered in the United States). Its website is the Complainant’s primary point of access and communication with consumers, where they obtain key information.
The Complainant is the registered owner of the marks VIVID SEATS and VIVIDSEATS in the United States. The Complainant asserts that its commercial success is in part due to its investment in advertising and promotion centered upon its relevant trademarks. The goodwill in those marks is said to subsist solely in the Complainant. The Complainant contends that its brands are distinctive and widely recognized.
According to the Complainant, it was recently alerted to the registration for the disputed domain names, each of which redirects to the competing website <ticketsmofo.com>. The Complainant contends that this website is designed to usurp the Complainant’s customers. The Complainant’s demand that the disputed domain names be reassigned went without response.
The Complainant also asserts that it has not authorized or licensed the Respondent to use its trade marks in any way. According to the Complainant the disputed domain names are confusingly similar to its registered trademarks. The disputed domain names each include as their dominant elements VIVID and SEATS with slight typo-variations, which the Complainant contends are clearly designed to capture any mistaken iterations of its trademarks. According to the Complainant, the de minimis differences between the disputed domain names and its trademarks are insufficient to overcome a finding of confusing similarity. The disputed domain names sound the same, and look the same at a glance as the Complainant’s trademarks.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain names. The Respondent did not make any use of the relevant trademarks before they were adopted by the Complainant. By the time the disputed domain names were registered, the Complainant asserts it already enjoyed great success in connection with the use of its relevant marks. According to the Complainant, the disputed domain names are used 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 Respondent’s use of the relevant domain names and the Complainant and its trademarks, according to the Complainant.
In terms of bad faith, the Complainant points out that the Respondent knew of the Complainant’s rights in the VIVID SEATS trademarks and names prior to registration of the disputed domain names. Further, the Complainant contends that the Respondent registered and used the disputed domain names for commercial gain by intentionally creating a likelihood of confusion with Complainant’s marks and names as to the source, sponsorship, affiliation, or endorsement of the Respondent’s services. The latter engaged in typo-squatting which according to the Complainant automatically amounts to bad faith.
The Complainant also points to the fact that the Respondent used the Complainant’s copyrighted materials without authorization and engaged in willful copyright infringement. Lastly, the Respondent ignored the Complainant’s correspondence and employed a privacy protection service in the registration of the disputed domain names. All this amounts to bad faith, in the Complainant’s submission.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Respondent had been using a privacy protection service at the time the Complaint was filed. The amended Complaint replaced the privacy protection service with the underlying registrant, Peter Smith. Reference to the Respondent below is reference to the party hidden by the privacy shield, Peter Smith, who is the beneficial owner of the disputed domain names.
A. Identical or Confusingly Similar
The disputed domain names are not identical to the trademarks of the Complainant. However, each constitutes a typical example of typo-squatting, that is, a deliberate a minor misspelling that is intended to mimic the kind of errors that Internet users commonly make when typing a term into a search engine bar. In this case those terms are the trademarks VIVID SEATS and VIVIDSEATS of the Complainant. Visually the differences between the disputed domain names and the relevant trademarks are very minor and easily overlooked; aurally the disputed domain names and the Complainant’s trademarks are even closer, sounding very much alike.
Therefore the Panel holds that the disputed domain names are confusingly similar to the trademarks of the Complainant.
B. Rights or Legitimate Interests
The Respondent in this matter is clearly aware of the reputation vested in the distinctive trademarks of the Complainant. The Respondent has engaged in deliberate typo-squatting, by which it seeks to gain a financial advantage by trickery. There is clearly no legitimacy about this exercise, given that the Respondent has established a rival website by which it attempts to syphon off clients who were seeking out the Complainant but accidentally arrived at the Respondent’s site. Some of those might be tricked into thinking that the site is that of the Complainant, whereas others might choose to proceed regardless. In either case the Respondent gains an unfair advantage by relying on a dishonest practice. The Respondent clearly does not have some legitimate interest in being able to continue this deceptive practice, nor do any rights in the disputed domain names vest in the Respondent as a result.
Therefore the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain names.
C. Registered and Used in Bad Faith
By the time the Respondent registered the disputed domain names, the Complainant had established a substantial reputation in its distinctive VIVID SEATS and VIVIDSEATS trademarks. It had also established a website with a distinctive livery, which the Complainant asserts is entitled to copyright protection. It is inconceivable that at the time of registration the Respondent was not aware of the business of the Complainant and the goodwill that vests in the relevant trademarks. That is also apparent from the deliberate typo-squatting strategy that the Respondent has adopted. Furthermore, the Respondent offers a rival service at the website to which all the disputed domain names resolve, and has established for that purpose its own website that mimics that of the Complainant. All these are bad faith actions that are intended to take unfair advantage of the reputation of the Complainant and syphon of clients and revenue in an illegitimate manner.
Therefore the Panel holds that the disputed domain names were registered and 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 <vividseaats.com>, <vividseatss.com>, <vividseatts.com>, <vividseeats.com> and <vvividseats.com> be transferred to the Complainant.
William A. Van Caenegem
Date: March 13, 2017