WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Zachry Alexander Brown v. Bormon Bolen

Case No. D2018-0951

1. The Parties

The Complainant is Zachry Alexander Brown of New York, New York, United States of America (“United States”), represented by Serling Rooks Hunter McKoy Worob & Averill, LLP, United States.

The Respondent is Bormon Bolen of Mon, Nagaland, India.

2. The Domain Name and Registrar

The disputed domain name <zacbrownbandtickets.org> (the “Disputed Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 27, 2018. On April 30, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 30, 2018, the Registrar 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 9, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 29, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 30, 2018.

The Center appointed John Swinson as the sole panelist in this matter on June 5, 2018. 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 Zachry Alexander Brown, an individual of the United States. The Complainant is an international recording artist professionally known as “Zac Brown”, who performs with other musicians under the name “Zac Brown Band”.

The Complainant owns a number of registered trade marks, including United States registered trade mark number 3634777 for ZAC BROWN BAND (the “Trade Mark”) which was registered on June 9, 2009 and the following device mark which was registered on October 23, 2012:

(the “Device Mark”).

According to the Complaint, the Complainant has been using the Trade Mark in connection with musical performances and the sale of recorded music, entertainment services and musical performances since at least as early as 2002.

The Respondent is Bormon Bolen, an individual of India and registered owner of the Disputed Domain Name. The Respondent did not file a Response, and consequently little information is known about the Respondent.

The Disputed Domain Name was registered on October 5, 2017. At the time of this decision, the Disputed Domain Name resolves to a website featuring various music-related articles and third party advertising.

5. Parties’ Contentions

A. Complainant

The Complainant makes the following submissions.

Identical or Confusingly Similar

The Disputed Domain Name is identical or confusingly similar to the Trade Mark. The Disputed Domain Name consists of the Trade Mark, the term “tickets”, and the generic Top-Level Domain (“gTLD”) “.org”.

Rights or Legitimate Interests

The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Respondent is not the owner or beneficiary of the Trade Mark. The Respondent is not otherwise connected with the Complainant or authorized, licensed or permitted to use the Trade Mark in a domain name or in relation to any goods or services offered by the Respondent.

There is no bona fide offering of goods or services under the Disputed Domain Name by the Respondent and the Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name.

The Respondent has registered the Disputed Domain Name with the intent to divert traffic from the Complainant’s website at <zacbrownband.com> (the “Complainant’s Website”) and other websites authorized by the Complainant to sell tickets to official performances.

Registered and Used in Bad Faith

The Respondent intended to register the Disputed Domain Name to attract Internet users to the Respondent’s website for commercial gain by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or of a product or service offered by the Respondent by using the Trade Mark and by trading on the goodwill associated with the Trade Mark.

The Disputed Domain Name was registered and is being used in bad faith by the Respondent.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:

(i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and

(iii) the Disputed Domain Name has been registered and is being used in bad faith.

The onus of proving these elements remains on the Complainant even though the Respondent has not filed a Response.

The Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org, WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent’s default.

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.

The Panel considers that the Disputed Domain Name is confusingly similar to the Trade Mark.

The addition of the term “tickets” does not prevent a finding of confusing similarity as the Trade Mark is recognizable within the Disputed Domain Name (see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).

The gTLD “.org” may be disregarded for the purposes of determining identity or confusing similarity (see section 1.11 of WIPO Overview 3.0).

The Complainant is successful on the first element of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.

The Panel finds that the Complainant has made out a prima facie case. This finding is based on the following:

- The Panel accepts the Complainant’s submission that the Respondent is not a licensee of, or otherwise authorized by, the Complainant to use the Disputed Domain Name.

- There is no evidence that the Respondent has been commonly known by the Disputed Domain Name or the Trade Mark, or has registered or common law trade mark rights in relation to the Disputed Domain Name.

- The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. At the time of this decision, the Disputed Domain Name points to a website featuring articles relating to music (but not relating to the Complainant) and third party advertising. The Device Mark appears on every page of the website. The Respondent does not appear to be offering for sale any goods or services. This use of the Disputed Domain Name does not confer rights or legitimate interests.

- The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Names without intent for commercial gain. As stated above, the website at the Disputed Domain Name contains third party advertising. It is open to the Panel to infer that the Respondent is deriving revenue from those advertisements.

The Respondent had the opportunity to demonstrate his rights or legitimate interests, but did not do so. In the absence of a Response from the Respondent, the prima facie case established by the Complainant has not been rebutted.

In light of the above, the Complainant succeeds on the second element of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent has registered and is using the Disputed Domain Name in bad faith.

The Complainant has had registered rights in the Trade Mark since 2009 and, according to the Complaint, has been using the Trade Mark in respect of its goods and services since 2002. The Disputed Domain Name was registered on October 5, 2017. It is clear the Respondent registered the Disputed Domain Name with the Complainant in mind, particularly given the Respondent’s use of the Device Mark on the website at the Disputed Domain Name. Further, the descriptive term “tickets” in the Disputed Domain Name contributes to the likelihood of confusion with the Complainant’s Trade Mark, as it is also possible to purchase tickets to the Complainant’s performances via the Complainant’s Website.

The Panel accepts the Complainant’s submission that the Respondent registered and is using the Disputed Domain Name to attract Internet users to its website for commercial gain by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the Respondent’s website, which is evidence of bad faith registration and use under paragraph 4(b)(iv) of the Policy. By using the Trade Mark in the Disputed Domain Name, the Panel reasonably considers that the Respondent is trading off the Complainant’s goodwill in the Trade Mark in a “bait and switch” move to divert Internet traffic to the Respondent’s website and increase revenue through third party advertising.

The Respondent’s illegitimate and unauthorized use of the Device Mark on the website at the Disputed Domain Name adds to the Panel’s finding of bad faith.

In light of the above, and the Respondent’s failure to provide evidence to the contrary, the Panel finds that the Complainant has succeeded on the third element of the Policy.

7. Decision

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 Name <zacbrownbandtickets.org> be transferred to the Complainant.

John Swinson
Sole Panelist
Date: June 19, 2018