The Complainant is Vivid Seats LLC, United States of America (the “United States”), represented by Norvell IP llc, United States.
The Respondent is Carolina Rodrigues, Fundacion Comercio Electronico, Panama.
The disputed domain name <vividsewts.com> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 14, 2019. On May 15, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 16, 2019 the Registrar transmitted by email to the Center its verification response confirming that the 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” 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 21, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 10, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 17, 2019.
The Center appointed Gareth Dickson as the sole panelist in this matter on July 1, 2019. 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.
The Complainant was founded in 2001 and sells tickets to events in the United States and Canada. It owns numerous federal trademark registrations and applications in the United States, Canada and other countries for VIVID SEATS, including United States registration numbers:
- 3,614,140, registered on April 28, 2009; and
- 5,193,840, registered on May 02, 2017,
(together, “the Marks”).
The Respondent registered the Domain Name on February 22, 2019. Currently, the Domain Name seems to have a dynamic redirection directing Internet users for example either: to a third party online ticket resale marketplace that competes with the Complainant; or to a website that is seemingly associated with malware.
The Complainant contends that the Domain Name is a common misspelling of the Marks and that the Respondent is typo-squatting. It alleges that the Domain Name has been used for websites associated with malware in the past and that it is currently being used to either compete with the Complainant or to redirect Internet users to another website associated with malware.
The Complainant provides evidence of the Respondent having been ordered to transfer domain names in at least 20 UDRP proceedings within the last 18 months, and of the Respondent’s many registrations of domain names featuring common misspellings of trade marks.
The Complainant states that the Respondent is not affiliated with or connected to the Complainant in any way and has not been given any permission to use the Marks, in the Domain Name or otherwise, nor is there any evidence that the Respondent has been commonly known by the Domain Name or that it has any rights or legitimate interests in respect of it. It argues that the Respondent must have been aware of the Complainant when choosing the Domain Name since neither “vividsewts” nor “sewts” has a meaning otherwise than as a misspelling of the Complainant’s Marks, meaning that the Domain Name must have been registered in bad faith, to take advantage of the Complainant’s Marks and to divert traffic away from the Complainant.
The Complainant also submits that there is no evidence that the Respondent has or is making any legitimate noncommercial or fair use of the Domain Name without intent for commercial gain, and argues that the use of the Domain Name to direct Internet users to a website that operates in competition with the Complainant, or to a website which is associated with malware, is evidence of use of the Domain Name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
Under paragraph 4(a) of the Policy, the Complainant bears the burden of proving that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) the Respondent 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.
These criteria are cumulative. The failure of the Complainant to prove any one of these elements means the Complaint must be denied.
The Panel accepts that the Complainant is the owner of, and therefore has rights in, the Marks.
Section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”) provides that “[a] domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. The Panel therefore accepts that the Domain Name is confusingly similar to the Marks. The replacement of an “a” with a “w”, that is, an adjacent character on a “QWERTY” keyboard, is clearly an intentional misspelling of the Marks. The addition of the generic Top-Level Domain “.com” does not alter this conclusion.
Accordingly, the Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights.
Although a complainant is required to demonstrate that a respondent has no rights or legitimate interests in respect of the domain name, as explained in section 2.1 of the WIPO Overview 3.0, the consensus view of previous UDRP panels is that where a complainant establishes a prima facie case that the respondent lacks rights or legitimate interests the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.
In the current proceeding, the Complainant has established its prima facie case. It states that it has not given the Respondent permission to use the Marks, in a domain name or otherwise, and submits that the Respondent has not been commonly known by the Domain Name. The Complainant also submits that the redirection of Internet users to a website of a competitor or to a website associated with malware does not constitute a bona fide sale of goods or services or a legitimate noncommercial or fair use within the meaning of the Policy.
By not participating in these proceedings, the Respondent has failed to refute the Complainant’s prima facie case that it has met its burden under the second UDRP element. As clearly stated in section 2.1 of the WIPO Overview 3.0, “a panel’s assessment will normally be made on the basis of the evidence presented in the complaint and any filed response. The panel may draw inferences from the absence of a response as it considers appropriate, but will weigh all available evidence irrespective of whether a response is filed”.
Having reviewed and weighed the available evidence, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Domain Name was registered in bad faith. It is a clear example of a typo-squatting domain name, that is, one which was chosen with a trade mark owner in mind, usually after the relevant trade marks have been registered, and for the purpose of diverting traffic away from that trade mark owner by capitalizing on Internet users’ typographical mistakes. This conclusion is inevitable from the fact that the Domain Name has no meaning other than as a reference to the Marks.
The Domain Name is also being used in bad faith. The Domain Name through dynamic redirections either directs Internet users to a direct competitor of the Complainant or sends them to a website that is associated with malware. Neither is an acceptable use of the Complainant’s trade marks. In addition, the existence of so many other UDRP proceedings having been won against the Respondent in a short space of time does not create a presumption of bad faith per se, but it does tend to support such a finding of bad faith where the Respondent has not taken any steps to rebut it.
The Panel finds that the Respondent has registered and is using the Domain Name in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <vividsewts.com> be transferred to the Complainant.
Date: July 15, 2019
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