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Glastonbury Festivals Limited v. Validweb.com Expired Domains [2005] GENDND 418 (3 May 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Glastonbury Festivals Limited v. Validweb.com Expired Domains

Case No. D2005-0188

1. The Parties

The Complainant is Glastonbury Festivals Limited, Somerset, United Kingdom of Great Britain and Northern Ireland, represented by Ben Challis, United Kingdom of Great Britain and Northern Ireland.

The Respondent is Validweb.com Expired Domains, London, United Kingdom of Great Britain and Northern Ireland.

2. The Domain Name and Registrar

The disputed domain name <glastonburyfestival.com> is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 17, 2005. On February 18, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On February 18, 2005, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 proceedings commenced on March 4, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was March 24, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 1, 2005.

The Center appointed Isabel Davies as the sole panelist in this matter on April 15, 2005. 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.

4. Factual Background

Trade Marks

The Complainant states that it owns the following trade marks:

“GLASTONBURY FESTIVAL” registered by the Trade Mark Registry of Great Britain and Northern Ireland number 2214368B as of November 16, 1999, in Classes 14, 16, 21, 25 and 41 and including (Class 16) posters, tickets, programmes and information books sold therewith and (Class 41) organisation, promotion, production of performance art entertainment including music, dance, comedy, theatre and circus, and the aforementioned services provided on-line from a computer database on the internet.

“GLASTONBURY” registered by the Trade Mark Registry of Great Britain and Northern Ireland number 2214368A as of November 16, 1999 in Classes 14, 16, 21, 25 and 41 and including (Class 16) posters, tickets, programmes and information books sold therewith and (Class 41) organisation, promotion, production of performance art entertainment including music, dance, comedy, theatre and circus, and the aforementioned services provided on-line from a computer database on the internet; all relating to festivals of the performing arts.

“GLASTONBURY FESTIVAL” (words and logo) registered by the Trade Marks Registry of Great Britain and Northern Ireland number 2262035 as of February 21, 2001, in Class 09 including recordings of sound or images, records, compact discs, mini discs, laser discs, digital audio recordings …. Publications in an electronic form supplied on-line or from facilities provided on the Internet; digital music provided from the Internet; digital recordings of performing arts entertainment provided from the Internet.

The Glastonbury Festival logo has a separate registration in the Trade Mark Registry of Great Britain and Northern Ireland number 2214398 as of November 16, 1999, in Classes 09, 16, 21, 25 and 41.

Trading History

The Complainant states that the Glastonbury Festival has been in existence since 1970, and has been called the Glastonbury Festival since 1971. They state that the Complainant, Glastonbury Festivals Limited, and its predecessor in titles, Glastonbury Festivals Limited and Mr. Michael Eavis (who remains the Managing Director of and shareholder in the Complainant Company) have traded as Glastonbury Festival and Glastonbury Festivals since 1971. The Festival is the UK’s leading festival of music and contemporary arts and was attended by 150,000 people in the United Kingdom in 2004.

They also contend that the Festival is filmed annually by the BBC for BBC2, BBC3 and BBC4 television and recorded for radio by BBC Radio 1 in the United Kingdom. These broadcasters have exclusive agreements with the Complainant. The Complainant uses and has used the marks ‘THE GLASTONBURY FESTIVAL’, ‘GLASTONBURY’ ‘4 GOES TO GLASTONBURY’, ‘THE GLASTONBURY EXPERIENCE’, and ‘GLASTONBURY 2004’, (‘GLASTONBURY 2003’ and variations on such title and mark based on the year of broadcast and filming) since 1994. The Festival is world renowned and radio and television programmes from the Festival are distributed worldwide on behalf of the Complainant by NBD TV and BBC Radio International. Over 1,000 journalists and media personnel from the UK and worldwide were accredited at the 2004 Festival.

The Complainant has presented the ‘Glastonbury Festival’ at Worthy Farm in Pilton, Somerset, United Kingdom since 1971 in the following years: 1971, 1979, 1981, 1982, 1984, 1985, 1986, 1987, 1989, 1990, 1992, 1993, 1994, 1995, 1997, 1998, 1999, 2000, 2002, 2003 and 2004.

Future Use Of Mark GLASTONBURY FESTIVAL

The Complainant states that the Glastonbury Festival will take place again in 2005, between June 24 and 26, 2005. A provisional licence was granted by the local authority on January 16, 2005. Tickets went on sale on the April 3, 2005, through a website called “www.aloud.com” under exclusive licence from the Complainant.

On March 21, 2005, the Complainant will release a DVD titled ‘Glastonbury Anthems’ by way of a joint venture with EMI music, a major record label, on a worldwide basis. This will be the first ever official Glastonbury DVD. The Complainant also plans a new music download service in 2005, using its registered trademarks and other marks.

BBC Television and BBC Radio will broadcast the 2005 Glastonbury Festival. Highlights of this programming will be distributed on a worldwide basis by NBDTV and BBC Radio International.

Other Domain Names

The Complainant states that it owns the URL “www.glastonburyfestivals.co.uk” which is the official website for the Glastonbury Festival and for the Complainant. The Complainant also owns and/or controls the following domain names:

<glastonbury-festival.co.uk>

<glastonbury-festivals.co.uk>

<theglastonburyexperience.com>

<glastonburyfestival.tv>

Company Names

The Company is registered in the United Kingdom with the registered name Glastonbury Festivals Limited.

The Complainant alleges that the Respondent is using the domain name to attract internet users to its website and inter alia to offer tickets and links to ticket sites offering tickets for the Complainant’s events. By letter of January 13, 2005, the Complainant requested that the Respondent transfer the domain name. No reply was received.

These allegations have not been contested and the Panel accepts these as undisputed facts.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the domain name. They state that there is no evidence prior to the first notice to the Respondent of January, 13, 2005, or notice of this Complaint of the Respondent’s use or preparations for use of the disputed domain name or any similar name in connection with a bona fide offering of goods or services. All use in the domain name infringes the Complainant’s trade marks and/or service marks. The use is not legitimate non-commercial use or fair use of the disputed domain name. The Complainant contends that the use is for commercial gain and is misleadingly diverting consumers and/or is being used to tarnish the Complainant’s trade marks or service marks.

The Complainant also contends that the domain name is registered and is being used in bad faith.

It is not contended that the Respondent registered the domain with the intention of offering it for sale to any party. It has not been offered for sale to the Complainant. They complain that it is unknown whether the Respondent registered the disputed domain name to prevent the Complainant registering it.

However, the Complainant contends that the Respondent’s intention in registering and using the disputed domain name was, and continues to be, to

(a) harm the business interests of the Complainant, and

(b) to attempt to attract, for commercial gain, internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website.

The Complainant contends that the Respondent is attempting to harm the business interests of the Complainant by offering, either directly or indirectly, tickets “for sale” to the Complainant’s festival. The Complainant has no agreement with the Respondent or any website or online service to which the domain name is linked including the “online ticket shop” through a disputed domain name. Tickets to the 2005 Festival went on sale on April 3, 2005, exclusively through the website of “www.aloud.com” which is the Complainant’s sole licensed ticket retailer and which is in no way connected to the Respondent. Tickets for the Complainant’s Festival are personalised and it is a condition of the contract of sale that the ticket is personal and cannot be re-sold.

The Respondent has registered and used the disputed domain name intentionally for commercial gain to attract internet users to the disputed domain website by creating confusion as to the Complainant’s sponsorship or endorsement of the website using the disputed name. There is evidence that the Respondent is making a commercial gain from the website and/or the Respondent acted with the intention to make such gain. The Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other online location by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or inducement. There are a further series of links to sites of which the top five include ‘art’, ‘concerts’, ‘events’, ‘food’ and ‘jobs’. None is connected to the Complainant.

In support of the Complainant’s contention that the Respondent’s use of the disputed domain name falls within paragraph 4(b)(iv) of the Policy, the Complainant asserts that the Complainant’s name and associated service marks are well known in the music industry through widespread publicity, marketing and advertising. The Respondent operates in the same market as the Complainant in as much as it offers tickets or links to ticket sites including links for the sale of tickets for the Complainant’s Festival and also offers links to online sites for tickets on sale for festivals and events competing with the Complainant.

The Complainant states that the Respondent has no rights or legitimate interests in the disputed domain name and requests that the Panel asks the registrar to transfer the domain name <glastonburyfestival.com> from the Respondent to the Complainant.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

In this case, the disputed domain name is identical with the Complainant’s UK registered trade mark “GLASTONBURY FESTIVAL” (Number 2214368B, dated November, 16, 1999) in Class 16 for posters, tickets, programmes and information books and in Class 41 for “organization, promotion, production of performance art entertainment including music, dance, comedy, theatre and circus and the aforementioned services provided online from a computer database on the internet” save for the space between “Glastonbury” and “Festival”. As the Respondent has registered the disputed domain name deliberately to obtain the benefit of his attraction of customers or internet users who would be seeking a website operated by the Complainant, this indicates that the Respondent knows that they are diverting business intentionally from the Complainant.

The Panel therefore considers that the Complainant has satisfied the Panel that the domain name of which complaint is made is identical with or confusingly similar to the trade mark in which the Complainant has rights derived from its trade mark registrations and use in commerce.

B. Rights or Legitimate Interests

The Complainant has alleged that the Respondent lacks rights and legitimate interests in the disputed domain name. Given that the Respondent is offering tickets to the Complainant’s events without Complainant’s authorization and that the Respondent is clearly aware of the Complainant, the Panel finds that the Complainant has shown a prima facie case that the Respondent has no rights and legitimate interests in the domain name.

The Respondent has, by failing to respond, shown no rights or legitimate interests in respect of the domain name <glastonburyfestival.com> to rebut the Complainant’s case.

C. Registered and Used in Bad Faith

The Respondent registered <glastonburyfestival.com> on September 26, 2000, when the Complainant had been, through itself and its predecessors in title, conducting a festival called the Glastonbury Festival for almost 30 years. The Respondent clearly had knowledge of the Complainant’s prior adoption and usage of the mark. This is clear from the fact that the Respondent is using the domain name to attract potential purchasers of tickets for the Glastonbury Festival in June 2005.

When accessing <glastonburyfestival.com> a popup panel states “Need Tickets? Get them here. Click now to order.”. Accordingly, by use of the domain name <glastonburyfestival.com> the Respondent is infringing the Complainant’s trade mark. Registering a domain name primarily for the purpose of disrupting the business of a competitor or for attracting internet users to another site by creating confusion is evidence of bad faith (Policy paragraph 4(b)(iii), (iv)).

The Panel determines that the Respondent acted in bad faith in registering and using the disputed domain.

7. Decision

Having established all three elements required by paragraph 4(a) of the Policy, it is the decision of the Panel that the request for relief, namely that the contested domain name be transferred to the Complainant, be granted. Accordingly, for all the foregoing reasons, it is ordered that the domain name <glastonburyfestival.com> be transferred from the Respondent to the Complainant.

Isabel Davies
Sole Panelist

Date: May 3, 2005