WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Ticketmaster Corporation v. Wine Savant, LLC

Case No. D2008-0578

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 Wine Savant, LLC, of Cleveland, Ohio, United States of America.

2. The Domain Name and Registrar

The Disputed Domain Name <wineticketmaster.com> is registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 15, 2008. On April 15, 2008, the Center transmitted by e-mail to GoDaddy.com, Inc. a request for registrar verification in connection with the domain name at issue. On April 15, 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 April 22, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 12, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 13, 2008.

The Center appointed Douglas M. Isenberg as the sole panelist in this matter on May 22, 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 350,000 entertainment and sporting events each year”. Further, Complainant states that it sold more than 128 million tickets valued at more than $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 Name was registered on August 14, 2005.

5. Parties’ Contentions

A. Complainant

In addition to the factual background set forth above, Complainant contends, inter alia, as follows:

- The Disputed Domain Name is identical or confusingly similar to the TICKETMASTER Trademarks because it incorporates the TICKETMASTER Trademarks in its entirety plus the addition of the word “wine”, which “does nothing to alleviate the confusing similarity between the [Disputed Domain Name] and the TICKETMASTER marks”.

- Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because Complainant “has not licensed or otherwise permitted Respondent to use the TICKETMASTER mark or to apply for or use any domain name incorporating the mark” and “Respondent is not commonly known by [the Disputed Domain Name] and has not acquired any trademark or service mark rights to that name”.

- The Disputed Domain Name was registered and is being used in bad faith because (as shown in an exhibit provided by Complainant), a website associated with the Disputed Domain Name offers “advertising… that offers links to ticketing sites including competitors of” Complainant, thus “siphon[ing] off visitors seeking [Complainant’s] ‘www.ticketmaster.com’ web site”. 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 the Respondent could legitimately use the [Disputed Domain Name]” (internal punctuation omitted).

B. Respondent

Respondent did not reply to Complainant’s contentions.

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 Name is 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 Name; and (iii) the Disputed Domain Name has been registered and is 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 Name is identical or confusingly similar to the TICKETMASTER Trademarks, the relevant comparison to be made is with the second-level portion of the Disputed Domain Name only (i.e., “wineticketmaster”), as it is well-established that the top-level domain (i.e., “.com”) should be disregarded for this purpose.

The Disputed Domain Name differs substantively from the TICKETMASTER Trademarks only by the addition of the single word “wine” to the Disputed Domain Name. The Panel agrees with Complainant and the cases under the Policy cited by Complainant that this addition does nothing to dispel confusion. This finding is consistent with similar findings by other panels that have had 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 the Disputed Domain Name 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 Name] and has not acquired any trademark or service mark rights to those names”.

Under the Policy, a complainant is required to make out an initial 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 June 5, 2008).

Accordingly, as a result of Complainant’s allegations and without any evidence of Respondent’s rights or legitimate interests in the Disputed Domain Name, 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 the website in connection with the Disputed Domain Name containing what would appear to be sponsored links to 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.

Therefore, the Panel is convinced that Complainant has proven the third element of the Policy.

7. Decision

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 name <wineticketmaster.com> be transferred to the Complainant.

Douglas M. Isenberg
Sole Panelist

Dated: June 5, 2008