The Complainant is Ticket Software, LLC of South Windsor, Connecticut, United States of America (“United States” or “U.S.”), internally represented.
The Respondent is Domains by Proxy, LLC of Scottsdale, Arizona, United States / Stephen Troy of Miami, Florida, United States.
The disputed domain names <ricketnetwork.com>, <ticketneteork.com>, <ticketnetwirk.com>, <ticketnetworj.com> and <tivketnetwork.com> (collectively the “Domain Names”) are registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 30, 2013 against Domains by Proxy, LLC with regard to the Domain Names and <ticketmetwork.com>. On January 31, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names and the domain name <ticketmetwork.com>. On February 1, 2013, the Registrar transmitted by email to the Center its verification response disclosing the registrant and contact information for the Domain Names and <ticketmetwork.com>, which differed from the original named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 8, 2013 providing the registrant and contact information for the Domain Names and <ticketmetwork.com> disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint with regard to the registrant and contact information as well as other deficiencies in the Complaint.
The Complainant filed an amended Complaint on February 13, 2013. Among the amendments made by the Complainant were the deletion of the domain name <ticketmetwork.com> from the Complaint and the updating of the Respondent’s information. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint and the amended Complaint, and the proceedings commenced on February 15, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 7, 2013. On February 13 and March 7, 2013, the Center received an email communication from a representative of the Respondent responding to the Complaint. On March 8, 2013, the Center invited the Complainant to consider requesting a suspension of the proceedings to explore a possible settlement between the parties. The Complainant did not request a suspension within the specified date and the Center proceeded to Panel Appointment.
The Center appointed Marylee Jenkins as the sole panelist in this matter on March 27, 2013. 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.
Based on the review of the uncontested evidence submitted with the Complaint, the Complainant is the owner of U.S. Trademark Registration No. 2,956,502 for TICKETNETWORK, registered on May 31, 2005 and covering goods in international classes 9 and 35.
The Domain Names were each created on January 13, 2011 and the registration of each of the Domain Names is set to expire on January 13, 2014. The Panel notes that there are currently no accessible websites at any of the Domain Names.
The Complainant bases its Complaint on its ownership of the mark TICKETNETWORK for which it has a U.S. trademark registration for use in connection with computer software, namely, software which manages the buying and selling of entertainment tickets and business services, namely, providing an online marketplace for buyers and sellers of entertainment tickets.
The Complainant contends that the Domain Names are confusingly similar to its mark because the Domain Names were common misspellings of the Complainant’s mark TICKETNETWORK or are achieved by common typographical errors in attempts to reach the Complainant’s website at “www.ticketnetwork.com”. The Complainant cites previous UDRP decisions arguing that the Domain Names were examples of “typosquatting” and that such renders the Domain Names confusingly similar to the Complainant’s mark.
The Complainant contends that the Respondent has no rights or legitimate interests in the Domain Names because the Respondent is not sponsored by or legitimately affiliated with the Complainant in any way and has not been given permission by the Complainant to use the Complainant’s trademark TICKETNETWORK in a domain name.
The Complainant contends that the Respondent registered and is using the Domain Names in bad faith. The Complainant cites a previous UDRP decision to argue that the Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. The Complainant also contends that the Domain Names redirect customers to a service known as “EZ-shoplink.com” where customers can buy tickets to entertainment events and that such uses of the Domain Names essentially result in monetary gain for the Respondent. The Respondent further contends that this creates a likelihood of confusion with the Complainant’s mark and also implies that the websites at the Domain Names are endorsed by the Complainant’s website at “www.ticketnetwork.com”.
A representative of the Respondent submitted an email on March 7, 2013 to the Center indicating ownership of the Domain Names and a willingness to transfer the Domain Names to the Complainant for compensation since the representative “was forced to renew these [Domain Names] as a result of this dispute being filed.”
Paragraph 4(a) of the Policy states that the domain name holder is to submit to a mandatory administrative proceeding in the event that a third party (complainant) asserts to an ICANN-approved dispute resolution service provider that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the domain name holder has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
The Panel can rule in the Complainant’s favor only after the Complainant has proven that the above-listed elements are present.
Under paragraph 4(a)(i) of the Policy, the Complainant is required to establish that the Domain Names are identical or confusingly similar to a trademark in which the Complainant has rights. The Panel finds that the Complainant has provided sufficient evidence to establish that it is the owner of and has rights in and to the federally registered mark TICKETNETWORK.
A review of the second-level domains <ricketnetwork>, <ticketneteork>, <ticketnetwirk>, <ticketnetworj> and <tivketnetwork> of the Domain Names shows that each domain comprises a misspelling by a single letter of the Complainant’s federally registered mark TICKETNETWORK. Such misspellings in the Domain Names do not prevent the Domain Names from being considered confusingly similar to the Complainant’s federally registered mark.
Based on the evidence submitted, the Panel finds that the Domain Names are confusingly similar to the Complainant’s mark TICKETNETWORK and concludes that paragraph 4(a)(i) has been satisfied.
Paragraph 4(c) of the Policy sets out circumstances, in particular but without limitation, which, if found by the Panel to be proven based on its evaluation of all of the evidence presented, can demonstrate the holder’s rights to or legitimate interests in the domain name. These circumstances include:
(i) before any notice to the holder of the dispute, the holder’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the holder (as an individual, business, or other organization) has been commonly known by the domain name, even if the holder has acquired no trademark or service mark rights; or
(iii) the domain name holder is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Complainant asserts that the Respondent has no rights or legitimate interests in the Domain Names, the Respondent is not sponsored by or legitimately affiliated with the Complainant in any way and the Respondent has not been given permission by the Complainant to use the Complainant’s trademark TICKETNETWORK in a domain name. In its informal Response, the Respondent did not respond to these assertions and did not assert any basis or evidence establishing its rights or legitimate interests in these Domain Names.
The Panel thus does not find that the Respondent has rights or legitimate interests in the Domain Names and therefore concludes that paragraph 4(a)(ii) of the Policy has been satisfied.
Paragraph 4(b) of the Policy states that evidence of registration and use in bad faith by the holder includes, but is not limited to:
(i) circumstances indicating that the holder has registered or 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 holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder 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 holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’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 website or location or of a product or service on the holder’s website or location.
With respect to this proceeding, the Complainant has failed in its burden to show that the Domain Names were registered and had been or are being used in bad faith by the Respondent. Particularly, the Complainant has failed to provide evidence that the Respondent: (i) registered the Domain Names primarily for the purpose of selling, renting or otherwise transferring the Domain Names to the Complainant for valuable consideration; (ii) registered the Domain Names to prevent the Complainant from reflecting its mark in a corresponding domain name and has engaged in a pattern of conduct of registering domain names incorporating the trademarks of third parties; (iii) registered the Domain Names primarily for the purpose of disrupting the business of a competitor; or (iv) by using the Domain Names, has intentionally attempted to attract, for commercial gain, Internet users to a site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of a site or of a product or service on a site.
Rather the Complainant merely asserts that the Respondent “uses the [D]omain [N]ames to redirect customers to a service known as EZ-shoplink.com where customers can buy tickets to entertainment events essentially resulting in monetary gain for the Respondent”. The Complainant did not submit any evidence to reflect such a redirection of customers via the Domain Names to a website at “www.ez-shoplink.com” or any evidence of the Domain Names directing or redirecting to any website now or in the past. The Panel notes that none of the Domain Names currently directs or redirects to any website. Without any supporting evidence, the Complainant’s limited assertions are not sufficient to support a finding that the Respondent has intentionally attempted to attract for commercial gain Internet users to a website by creating a likelihood of confusion with the Complainant’s mark.
The Complainant also cites to the decision in National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011 (“Zuccarini”) asserting that the “Respondent’s typo-squatting behavior is, in and of itself, evidence of bad faith.” However, in Zuccarini, while the respondent’s typosquatting was a factor in the learned panel’s finding of bad faith registration and use of the domain name, the Complainant also argued extensively with regard to the required elements to be proven under the Policy and provided extensive supporting evidence of bad faith, including printouts of the website accessible at the domain name. Here, while the Respondent’s behavior may be characterized as typosquatting and such behavior may support a finding that the Domain Names are confusingly similar to the Complainant’s mark, some evidence of abuse at least must be provided for purposes of the third element. In the present case, not even print-outs of the web pages at the Domain Names have been supplied even after the Complainant had an opportunity to provide such evidence in the amended Complaint submitted pursuant to the Center’s deficiency notification. Further, the Panel’s own review shows that the Domain Names do not currently resolve to any website. Such omissions and lack of explanation by the Complainant give the Panel reservation about giving the Complainant any further bites at the “evidentiary apple” via a panel order requesting such materials, which the Panel does not find to be appropriate here. Ultimately, the burden is on the Complainant to prove its case and it is this Panel’s view, that confusing similarity combined with limited assertions alone, is not sufficient to support a finding that the Respondent registered and is using or had used the Domain Names in bad faith.
The Panel therefore finds that the Complainant’s limited assertions, without more, are not enough to satisfy the burden that the Complainant must meet under the Policy. Based upon the above, the Panel finds that paragraph 4(a)(iii) of the Policy has not been satisfied.
The Panel finds that the Complainant has not proven all three elements in paragraph 4(a) of the Policy and determines that the Complainant’s request to transfer the Domain Name is denied.
Marylee Jenkins
Sole Panelist
Date: April 19, 2013