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Ticketmaster Corporation v. Iskra Service

WIPO Case No. D2002-0165

Outcome
Transfer
Domain names
ticketmasteer.com
Complainant
Ticketmaster Corporation
Respondent
Iskra Service
Panelist
F. Kunze
Decided
17 Apr 2002
Language
English

Source: WIPO Arbitration and Mediation Center. Official copy: https://www.wipo.int/amc/en/domains/decisions/html/2002/d2002-0165.html

WIPO Arbitration

and Mediation Center

ADMINISTRATIVE

PANEL DECISION

Ticketmaster

Corporation v. Iskra Service

Case No.

D2002-0165

1. The Parties

The Complainant is Ticketmaster

Corporation, an Illinois corporation located at 3701 Wilshire Boulevard, Los

Angeles, Ca 90010, USA. Its authorized representatives are Robert W. Sacoff

and John M. Murphy, Pattishall, McAucliffe, Newbury, Hilliard & Geraldsen,

311 South Wacker Drive, Suite 5000, Chicago, Ill, 60606, USA, and Janet Shih

Hajek, Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, 1700 Diagonal

Road, Suite 550, Alexandra, VA 22314, USA.

The Respondent is Iskra

Service, Ulitsa O. Goga 10-11, Kishinev, 10012 Moldavia

2. The Domain Name and

Registrar

The domain name at issue

is <ticketmasteer.com>.

The Registrar is Bulkregister.com,

Inc. 7 East Redwood Street, Third Floor, Baltimore 21202, USA

3. Procedural History

The Complaint was filed

with the WIPO Arbitration and Mediation Center ("the Center") by e-mail

on February 18, 2002, and a hardcopy was received by the Center on February

21, 2002. The Center acknowledged the receipt of the Complaint on February 21, 2002.

On February 25, 2002, the

Center sent to Bulkregister.com a request for verification of registration data.

At the same date, Bulkregister.com confirmed to be the Registrar, that the Respondent

is the Registrant of the domain name <ticketmasteer.com>, that the administrative

contact and the technical contact is Vladimir Snezko, Host for You, Post box

97, Moscow, RU 111538.

WIPO verified that the

Complaint satisfies the Rules for Uniform Domain Name Dispute Resolution Policy

and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy

and that payment was properly made. The Panel is satisfied this is the case.

On February 27, 2002, the Complaint was properly notified in accordance

with the Rules, paragraph 2(a), and the administrative proceedings commenced.

Since no communication

was received from the Respondent within the time limit set, the Center sent

a default notification to the Respondent, on March 21, 2002.

On March 26, 2002, the

Center notified the Parties that an Administrative Panel, composed of a single

member, Dr. Gerd F. Kunze, had been appointed and that the Panelist had duly

submitted a "Statement of Acceptance and Declaration of Impartiality and

Independence" to the Center.

No further submissions

were received by the Center or the Panel. The date scheduled for issuance of

the Panel’s decision is April 8, 2002.

4. Factual Background

A. Complainant

The Complainant is the

global leader in live event ticket sales. It serves more than 6200 clients

worldwide and acts as the exclusive ticketing service for hundreds of leading

arenas, stadiums, performing arts venues and theaters.

The Complainant is the

owner of registered marks (trademarks and service marks) for the word TICKETMASTER,

standing alone, or in combination with graphical elements, in over 70 countries,

including the United States, the European Community and the United Kingdom (where

inter alia the word TICKETMASTER is registered) and Moldova and the Russian

Federation (where a TICKETMASTER logo is registered), as listed in Exhibit 5

to the Complaint. In particular, it is the owner of the US service mark registration

no. 1 746 016, dated January 12, 1993, for the word TICKETMASTER, covering accounting

services for ticket sales rendered by computer, ticket agency services for sports

events, musical concerts and other entertainment events, etc. in international

class 35; and of the US service mark registration no. 2 464 582,

dated June 26, 2001, with application date of Oct. 13, 1999, for the word TICKETMASTER,

covering on-line ticket agency services for sporting events, musical concerts

and other entertainment events, in class 35. These marks are evidenced by copies

of the US-registrations in Exhibit 4 to the Complaint. Whilst "ticket"

and "master" are words of common English language, their combination

is arbitrary and original. As a result of the long standing extensive use of

the mark TICKETMASTER by the Complainant it has become internationally known

and, at least in the United States, well-known for the Complainant’s activities.

The Complainant uses the

domain name <ticketmaster.com> in connection with online-ticketing services,

as evidenced by a color print-out of the home page for its website in Exhibit

6. Additionally, its affiliates in Canada, Mexico, Ireland, the United Kingdom

and Australia maintain similar websites at local ccTLDs (as evidenced in Exhibit

7).

B. Respondent

The Respondent registered

on November 20, 2000, the domain name <ticketmasteer.com> and is using

it for a link to a pop-up dialog box at http://www.gotoo.com/treasure/tickets.html

promoting gambling and encouraging the Internet user to enter an on-line gambling

web site. After clicking "OK" within this dialog box, the user is

taken to one of several gambling websites (as evidenced by Exhibit 9). However,

when the visitor decides not to follow that invitation and is clicking "cancel"

or closing the dialog box, the browser window directs the Internet user to the

home page of <TicketsNow.com>, a virtual ticket browser website (as evidenced

by Exhibit 10).

5. Parties’ Contentions

A. Complainant

The Complainant submits

that (1) the domain name <ticketmasteer.com> is identical or confusingly

similar to a trademark or service mark, in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain

name; (3) the domain name was registered and is being used in bad faith.

B. Respondent

The Respondent has failed

to submit any statement. It has therefore not contested the allegations of the

Complaint and the Panel shall decide on the basis of Complainant’s submissions,

and all inferences that can reasonably be drawn therefrom (Rule 14(b) or the

Policy).

6. Discussion and Findings

Paragraph 4(a) of the Policy

lists three elements that the Complainant must prove to merit a finding that

the domain name of the Respondent be transferred to the Complainant:

1) the domain name is

identical or confusingly similar to a trademark or service mark ("mark") in

which the Complainant has rights; and

2) the Respondent has

no rights or legitimate interests in respect of the domain name; and

3) the domain name has

been registered and is being used in bad faith.

1) Confusing Similarity

with a Mark in which the Complainant has rights

The domain name <ticketmasteer.com>

is not identical with the mark "TICKETMASTER" in which the Complainant

has rights. However, the only difference is the addition of one letter which

gives the impression to be a misspelling of the Complainant’s mark (the generic

tld indicator".com" cannot be taken into consideration when judging

confusing similarity). The additional "e" is likely to be overlooked

and in view of the close similarity of "masteer" to the common word

"master" the domain name will not be pronounced differently. Based

on general principles of confusing similarity of marks, the domain name <ticketmasteer.com>

is therefore nearly identical and clearly confusingly similar to the mark TICKETMASTER,

in which the Complainant has rights. Also, when taking into account the particularities

of the Internet, confusion will arise. The domain name is a typographical variation

of the Complainant’s mark and domain name, which is likely to be erroneously

typed by Internet users who intend to accede the Complainant’s website under

its domain name <ticketmaster.com> and are mistyping it. In view of the

use of the domain name made by the Respondent (see above 4B), Respondent’s domain

name <ticketmasteer.com> directs such users either to a gambling site

or to <ticketsnow.com>, the website of a competitor of the Complainant,

providing services nearly identical to those offered by the Complainant. Such

use is likely to mislead customers into believing that the Respondent, respectively

<ticketsnow.com> are somehow associated with the Complainant (such as

affiliated, sponsored or otherwise endorsed).

That such misspelling or

typographical variation of a mark is confusingly similar to the Complainant’s

mark has repeatedly been held in decisions under the Policy (e.g. WIPO Case

No. D2000-1160, Alta Vista Company

v. O.F.E.Z.; WIPO Case No. D2001-0302,

Dow Jones & Company Inc. and Dow Jones LP v. John Zuccarini).

2) Legitimate Rights

or Interests in respect of the Domain Name

The Respondent has no connection

or affiliation with the Complainant, who has not consented to the Respondent's

use of the domain name, which is so similar that it gives the impression to

be a misspelling the Complainant’s mark. Respondent does not make any use of

the domain name for its own legitimate commercial or non-commercial activities,

if any. As said before, Respondent’s domain name <ticketmasteer.com> leads

to a pop-up dialog box, which directs users either to a gambling site or to

<ticketsnow.com>, the website of a competitor of the Complainant, providing

services nearly identical to those offered by the Complainant. Such use which

as a kind of "postal address" links the visitor to other websites

offering competitive products has repeatedly been held not to be a bona fide

offering of goods or services. Even if the Respondent does not use its domain

name to promote commercial activities of its own, the Panelist is satisfied

that such use cannot be considered to be non-commercial. It would make no sense

for the Respondent to provide links to gambling sites and to a competitor of

the Complainant, if it where not to attract a fee, the more as such arrangements

are common. Finally, for the same reason that the Respondent does not promote

its own commercial activities, the Respondent has not been able to become known

under that domain name.

In the absence of any submission

of the Respondent, the Panel therefore concludes that the Respondent has no

rights or legitimate interests vis-à-vis the Complainant in the domain

name <ticketmasteer.com>.

3) Registration and

Use in Bad Faith

For a Complainant to succeed,

the Panel must be satisfied that a domain name has been registered and is being

used in bad faith.

The Respondent has not

attempted to sell the domain name to the Complainant. However, it uses it in

a manner which must be considered to be use in bad faith and at the same time

that use is a strong indication that the Respondent has registered its domain

name in bad faith:

The Panelist assumes that

the Respondent had knowledge of the Complainant’s mark TICKETMASTER, when it

registered the domain name <ticketmasteer.com>. Such conclusion cannot

only be drawn from the actual use that the Respondent is making of its domain

name, but also from the fact that it chose an apparent misspelling of the Complainant’s

mark and domain name <ticketmaster.com>. It cannot reasonably be imagined

that the Respondent chose for its domain name a combination of the English word

"ticket" and the spelling "masteer" instead of "master",

a second English word, if it had not known the Complainant’s mark and domain

name (the very existence of the Complainant’s domain name prevented the Respondent

from registering <ticketmaster.com>). This alone is already an indication

of registration in bad faith. Taking into account the use which the Registrant

is making of its domain name, as described before, and in the absence of any

submission of the Respondent to the contrary, the Panelist is satisfied that

the Respondent has registered the domain name in bad faith, i.e. in order to

be able to make that use of its domain name.

As said before, the Respondent

has been using the domain name <ticketmasteer.com> as a link to a pop-up

dialog box in order to direct visitors, who are mistyping the Complainant’s

domain name, either to a gambling site or to the homepage of a competitor of

the Complainant. These visitors cannot escape. Even if they try to leave the

dialog box, which is appearing when they type the Respondent’s domain name,

by clicking "cancel" or even by closing the dialog box, they will

be linked to the website of a competitor of the Complainant. By such use the

Respondent intentionally attempts to attract Internet users to an on-line location,

which creates a likelihood of confusion with the Complainant’s mark as to the

source, sponsorship, affiliation, or endorsement of that location. The fact

that such confusion may be dispelled, and replaced by annoyance or disgust once

the nature of the site is revealed, does not negate the fact of initial confusion,

as rightly has been concluded in the decision WIPO Case NO. D2001-0761,

Royal Bank of Canada v. Personal.

In the absence of any submission

of the Respondent, the Panelist has no doubt that the Respondent makes that

use of his domain name for commercial gain. Thus it is pursuing an activity,

sometimes called "typosquatting" (see the above cited decision WIPO

Case No. D2001-0302), which must be considered

to be bad faith under the Policy. Even if item 4b) iv) of the Policy refers

to the website or other location of the Respondent, whilst the Respondent

uses its domain name primarily in order to revert the visitor to other

websites, the Panelist considers the circumstances of the case to be evidence

of registration and use in bad faith, at least comparable to the circumstances

listed in item 4b) iv) of the Policy. If one considers the pop-up dialog box,

which is appearing when an Internet user types the Respondent’s domain name,

to be "an other on-line location", the Respondent’s activity clearly

is covered by item 4b) iv). Be it as it may, the circumstances as listed in

item 4b) i) to iv) are not exhaustive and the Panelist is satisfied that the

pattern developed by the Respondent is evidence of registration and use in bad

faith.

The Complainant has submitted

a number of additional arguments to demonstrate that the Respondent acted in

bad faith. There is indeed strong evidence that the Respondent is nothing but

a cover name, used by an entity or group of individuals, involved in bad faith

domain name registrations. At least in one reported case of bad faith registration,

an e-mail address was used, which was identical to that used by Vladimir Snezko,

the Respondent’s administrative and technical contact, and in other cases very

similar e-mail addresses were used. Also there are striking similarities of

the factual background of the present case and other cases, where the infringing

domain names resolved to pop-up boxes with texts comparable to the one used

by the Respondent and also leading to gambling sites.

However, in the absence

of any submission of the Respondent, the Panelist is satisfied that already

the before described pattern of activity of the Respondent, as evidenced by

the Complainant, leads to the clear conclusion that the Respondent has registered

and is using the domain name <ticketmasteer.com> in bad faith, which may

be summarized as follows:

The Respondent intentionally

registered as its domain name a misspelling of the Complainant’s mark and domain

name, in order to misdirect for commercial gain visitors through a link to a

pop-up box to either a gambling site, or to the homepage of a competitor of

the Complainant. Thus it created and continues to create a likelihood of confusion

with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement

of the websites to which the traffic is diverted.

7. Decision

The Panel decides that

the Complainant has proven each of the three elements of paragraph 4(a) of the

Policy.

Pursuant to paragraph 4(i)

of the Policy and paragraph 15 of the Rules, the Panel requires that the registration

of the domain name <ticketmasteer.com> be transferred to the Complainant.

Dr. Gerd

F. Kunze

Sole Panelist

Dated: April

8, 2002

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