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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