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Generic Top Level Domain Name (gTLD) Decisions |
DECISION
Show-Me
Tickets, Inc. c/o Brant Nathan Bukowsky v. Great Seats Co. Inc. c/o Robert
Jones
Claim Number:
FA0306000164377
PARTIES
Complainant is Show-Me Tickets, Inc. c/o
Brant Nathan Bukowsky, Columbia, MO (“Complainant”). Respondent is Great
Seats Co. Inc. c/o Robert Jones, Indianapolis, IN (“Respondent”)
represented by Brett E. Osborne of The Osborne Law Firm.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <showmeticket.com>
registered with Go Daddy Software, Inc.
PANEL
The undersigned certifies that he has
acted independently and impartially and to the best of his knowledge has no
known conflict in
serving as Panelist in this proceeding.
William H. Andrews, Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the
National Arbitration Forum (the “Forum”) electronically on June 17, 2003; the
Forum received
a hard copy of the Complaint on June 23, 2003.
On June 17, 2003, Go Daddy Software, Inc.
confirmed by e-mail to the Forum that the domain name <showmeticket.com>
is registered with Go Daddy Software, Inc. and that the Respondent is the
current registrant of the name. Go Daddy Software, Inc.
has verified that
Respondent is bound by the Go Daddy Software, Inc. registration agreement and
has thereby agreed to resolve domain-name
disputes brought by third parties in
accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the
“Policy”).
On June 27, 2003, a Notification of
Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting
a deadline of July 17, 2003 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent via e-mail,
post and fax, to all entities and persons listed on Respondent’s registration
as technical, administrative and billing contacts,
and to
postmaster@showmeticket.com by e-mail.
A timely Response was received and
determined to be complete on July 17, 2003.
On or about July 25, 2003, pursuant to
Complainant’s request to have the dispute decided by a single-member Panel, the
Forum appointed
William H. Andrews as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name
be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends that Respondent’s
registration and use of the domain name violates ICANN Policy Par. 4. Complainant alleges that the registered name
is confusingly similar to the Show-Me Tickets name in which Complainant has
rights, that
Respondent has no rights or legitimate interests in the name and that
the registration and use of the name was done in bad faith.
B. Respondent
Respondent does not contest that the
domain name at issue is confusingly similar to Complainant’s mark. Respondent does contend, however, that
Complainant has failed to prove that Respondent had no rights or legitimate
interests to the
domain name <showmetickets.com>, or that
Respondent registered and used the name in bad faith.
C. Additional Submissions
There were no additional submissions.
FINDINGS
Complainant is in the business of selling
tickets for sports, theater and concerts nationwide and is commonly known by
the name Show-Me
Tickets. Complainant has used the name in business since 1997
and has registered it as a trademark.
Complainant registered the domain name, <showmetickets.com>,
on or about December 19, 1998, and uses the domain name to sell its
tickets. Respondent’s company name is
Great Seats Company, Inc. On or about
May 22, 2002, Respondent registered the domain name <showmeticket.com>. The aforementioned site links to
<racedaytickets.com>, which is operated by Respondent and which also
sells tickets for sports,
theater and concert tickets nationwide.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform
Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to
“decide a complaint
on the basis of the statements and documents submitted in
accordance with the Policy, these Rules and any rules and principles of
law
that it deems applicable.”
Paragraph 4(a) of the Policy requires
that the Complainant must prove each of the following three elements to obtain
an order that
a domain name should be cancelled or transferred:
(1) the
domain name registered by the Respondent 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;
and
(3) the
domain name has been registered and is being used in bad faith.
Identical and/or Confusingly Similar
Complainant contends the disputed domain
name, <showmeticket.com>, is identical to and/or confusingly
similar to Complainant’s mark.
Complainant’s business name is Show-Me Tickets. Complainant is commonly known by that name,
has used the same in business since 1997, and registered the domain name
<showmetickets.com>
in 1998.
These allegations are not contested by the Respondent. Respondent does not deny that Complainant
has rights in the name, nor does Respondent contend the domain name, <showmeticket.com>,
is not confusingly similar to Complainant’s mark. Respondent has completely incorporated Complainant’s mark with
the exception of one letter. Applicable precedent clearly indicates
that the
addition or subtraction of one letter does not create a distinctive mark. See Victoria’s Secret v. Zuccarini,
FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words
and adding letters to words, a Respondent does not
create a distinct mark but
nevertheless renders the domain name confusingly similar to Complainant’s
marks).
Accordingly, the Panel concludes the
domain name registered by Respondent is confusingly similar and/or identical to
Complainant’s
mark.
Rights or Legitimate Interests
Complainant argues Respondent has no
rights or legitimate interests in the name <showmeticket.com>. Specifically, Complainant contends
Respondent has never been known by the name “showmeticket” in any
variation. Respondent argues that it
has rights to use the name and further contends that by using the name to sell
tickets, it engaged the name
in connection with a bona-fide offering of goods
and services.
Once Complainant asserts that Respondent
has no rights or legitimate interests in respect of the domain, the burden
shifts to Respondent
to provide credible evidence that substantiates its claim
of rights and legitimate interests in the domain name. See Do the Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000); See also G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum Oct. 1 2002) (holding where a Complainant has
asserted that Respondent has no rights or legitimate interests
in the domain
name it is incumbent on Respondent to come forward with concrete evidence
rebutting this assertion because this information
is “uniquely within the
knowledge and control of the respondent”). Thus, following Complainant’s
allegations and proof of its rights
to the name, the burden fell to Respondent
to establish its interest in the name.
There is no evidence that Respondent was
known by the name “showmeticket” at any time prior to its registration of the
domain name. Accordingly, paragraph
4(c)(ii) of the Policy does not apply.
Complainant argues that Respondent set up the site to divert consumers
to Respondent’s competing business.
Respondent does not specifically deny the allegation that it used the
name to direct consumers to its <racedaytickets.com> site,
but insists
that the word “ticket,” used in connection with Respondent’s business of
selling tickets, is merely descriptive of the
service Respondent provides. Respondent, however, substantially
incorporated Complainant’s entire mark, rather than just the generic term
“ticket.” Respondent contends that
using Complainant’s name to link to Respondent’s site, where it sells competing
goods, is permissible but
provides no support for such a proposition. To the contrary, such activity is not a
bona-fide offering of goods or services pursuant to Policy par. 4(c)(i), nor is
it legitimate
non-commercial or fair use of a domain name as stated in Policy
par. 4(c)(iii). Clear Channel
Communications, Inc. v. Beaty Enterprises, FA 135008 (Nat. Arb. Forum
Jan.2, 2003); See also MBS Computers Ltd. v. Workman, FA 96632 (Nat.
Arb. Forum Mar. 16, 2001)(finding no rights or legitimate interests when
Respondent is using a domain name identical
to Complainant’s mark and is
offering similar services); see also Scholastic Inc. v. Applied Software
Solutions, Inc., D2000-1629 (WIPO March 15, 2001), (finding no rights or
legitimate interests where Respondent initially used the domain name at
issue
to resolve to a website where educational services were offered to the same
market as that served by Complainant and later
Respondent modified use of the
domain name after receiving domain name Complaint; see also Kosmea Pty Ltd.
v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain
name where Respondent has an intention to divert consumers of Complainant’s
products to Respondent’s site by using Complainant’s mark). As it was stated in America Online, Inc.
v. Fu, D2000-1374 (WIPO Dec. 12, 2000) (<icq502.com> and
<icq520.com>), “it would be unconscionable to find a bona fide offering
of services in a respondent’s operation of a website using a domain name which
is confusingly similar to Complainant’s mark and for
the same business.”
Accordingly, the Panel concludes that
Respondent has no legitimate rights or interests to the domain name, <showmeticket.com>.
i)
Whether there are circumstances indicating that Respondent 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 Respondent’s documented out
of pocket
costs directly related to the domain name; or
ii)
Whether Respondent 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 Respondent has engaged in a pattern of such conduct;
or
iii)
Whether Respondent has registered the domain name primarily for the purpose of
disrupting the business of a competitor; or
iv)
Whether by using the domain name, Respondent has intentionally attempted to attract,
for commercial gain, Internet users to Respondent’s
web site or other on line
location, by creating a likelihood of confusion with the Complainant’s mark as
to the source, sponsorship,
affiliation, or endorsement of Respondent’s web
site or location or of a product or service on Respondent’s web site or
location.
Policy par. 4(b) is non-exclusive and
therefore, circumstances other than those listed in the policy of bad faith can
meet the requirement
set forth under Policy par. 4(a)(iii). Gallup Inc. v. Amish Country Store,
FA 96209 (Nat. Arb. Forum Jan. 23, 2001).
On the submissions provided, the Panel
concludes that the bad-faith element has been established.
The Complainant does business as Show-Me
Tickets, Inc. The Complainant is
commonly known as Show-Me Tickets TM,
and first used the same in its business in 1997. Complainant has registered
Show-Me Tickets as a trademark, and registered the domain
name
<showmetickets.com> in 1998.
Respondent was at least constructively aware of Complainant’s mark. See Digi Int’l v. DDI Sys., FA 124506
(Nat. Arb. Forum Oct. 24, 2002)(holding that there is a legal presumption of
bad faith, when Respondent reasonably should
have been aware of Complainant’s
trademarks, actually or constructively”).
Respondent has never been known as Show-Me Tickets. Respondent’s domain, <showmeticket.com>,
was registered nearly three and one-half years after Complainant registered its
site, and Respondent’s site links to <racedaytickets.com>,
which offers
the same services and products as Show-Me Tickets. The conclusion that Respondent registered the site to attract
Complainant’s prospective customers is inescapable. It is evidence of
bad faith
under Policy ¶ 4(b)(iv) when one tries to intentionally attract Internet users
to its site for commercial gain by means
of intentional confusion between a
respondent’s domain name and a complainant’s mark. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650
(Nat. Arb. Forum Oct. 30, 2000).
Other panels have found that registration
and use of a domain name to divert Internet users to web sites of competing
organizations
constituted bad faith use and registration. Ticketmaster Corporation v. DiscoverNet, Inc.,
D2001-0252 (WIPO April 9, 2001); See eg Interactive Gallery, Inc. v. d
communications, FA 94673 (Nat. Arb. Forum June 27, 2000); See also
Household Int’l, Inc. v. Cyntom Enterprises, FA 95784 (Nat. Arb. Forum,
Nov. 7, 2000) (“Just as the employment of a well-known business name for no
particularly good reason
undermines any claim of legitimate interest, so it may
also support an inference of a bad faith attempt to use the name to harass
or
exploit the legitimate owner....Respondent, if he ever was serious in the
registration of this domain name, must have relied on
the good chance he would
attract [Complainant’s] customers”); see also Computerized Sec. Sys., Inc.
d/b/a SAFLOK v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that Respondent’s use of the
<saflock.com> domain name to offer goods competing with Complainant’s
illustrates Respondent’s
bad faith registration and use of the domain name,
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see
also Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 WIPO Apr. 22,
2000) (finding bad faith where Respondent attempted to attract customers to its
website, <efitnesswholesale.com>,
and created confusion by offering
similar products for sale as Complainant).
Respondent’s use of a domain name may
also be considered an instance of “typosqatting,” a practice which implicates the registration of a domain name
that takes advantage of Internet users who inadvertently misspell the
domain
name of a trademark holder. See
National Association of Professional Baseball Leagues v. Zuccarini,
D2002-1011 (WIPO, Jan. 21, 2003) and Bama Rags, Inc. v. Zuccarini, FA
94380 (Nat. Arb. Forum May 8, 2000).
Such a practice is evidence of bad faith.
The submissions indicate that Respondent was at least
constructively aware of Complainant’s mark, and that Respondent has attempted
to derive a pecuniary gain from use of Complainant’s name. Respondent’s incorporation of Complainant’s
mark clearly makes it likely that confusion will be caused by directing
consumers looking
for Complainant to Respondent’s site. Accordingly, the Panel finds that
Respondent’s actions contravene paragraph 4(b)(iv) of the Policy.
DECISION
Having established all three elements
required under ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <showmeticket.com>
domain name be TRANSFERRED from Respondent to Complainant.
William H. Andrews, Panelist
Dated: August 6, 2003
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