By Steve Levy
In a recent UDRP case against the domain name <fyrefestival.com>, the Panel denied a transfer request from LimeWR Fyre OÜ, the company that now claims ownership of the infamous FYRE FESTIVAL trademark. The Respondent, Liam Spencer, purchased the domain name <fyrefestival.com> when it dropped for non-renewal in August of 2017 after apparently being owned by the Complainant’s predecessor. This was a few months after the original festival, in the Bahamas, imploded in spectacular fashion which made the news all over the world. The Complainant, a successor to the original festival owner, argued that it had acquired trademark rights and that Spencer was profiting off of consumer confusion by redirecting traffic from the domain name to another travel site for Caribbean destinations.
The sole Panelist denied the complaint, finding that the Complainant failed to prove two of the three UDRP elements: lack of legitimate interest and bad faith registration. But I feel that the analysis was incomplete and that the domain name should have been transferred.
First, the Panel accepted that the Complainant had trademark rights in the FYRE FESTIVAL name though its registration with the USPTO. However, somewhat troubling was the Panel’s treatment of the legitimacy prong (i.e., whether the Respondent has rights or legitimate interests in the domain name). The Complainant alleged that the domain name redirected users to a travel site that misleads consumers by profiting off of the brand’s notoriety. But the panel dismissed this, noting that the evidence didn’t conclusively show a connection between the disputed domain name and the redirected travel site. The decision notes that the travel site shares an IP address with the <fyrefestival.com> domain name but it makes no mention of whether direct evidence of the redirect was provided (e.g., a video file or a screenshot from a site like redirectdetective.com). The Panel concluded that “[t]he Complaint does not show with any certainty use of the domain name”. It further said that “[w]hether the words FYRE FESTIVAL enjoyed common law trademark rights in August 2017 is, in the Panel’s assessment, contestable” despite the fact that the mark was promoted before the anticipated April 2017 festival date and was broadly covered in worldwide news outlets after the event collapsed in May of 2017.
As for bad faith, the Panel found that the Respondent didn’t register the domain name to target the FYRE FESTIVAL mark and capitalize on the event’s infamy despite the fact that the redirected travel site had a section specifically titled “Fyre Festival” followed by an entire paragraph about the event and its spectacular collapse. This strikes me as good evidence that the Respondent both knew of the Complainant and targeted its mark in bad faith.
In the end, I feel that the Panel reached the wrong result and should have ordered a transfer of the domain name. The Complainant’s evidence was not described in sufficient detail in the decision and UDRP pleadings are not made public like court records so we may never know exactly what was before the Panel for consideration. Also, the Respondent’s motives weren’t exactly pure as it used this infamous mark to promote its own commercial travel services in the same geographic region that hosts the festival. Ultimately, this case exemplifies that even failed ventures such as the Fyre Festival can still generate valuable trademark rights, and such failure should not be the cause of dismissal of UDRP complai