NP Opco LLC v. Hulmiho Ukolen / Poste restante
Claim Number: FA1911001870294
Complainant is NP Opco LLC (“Complainant”), represented by Lindsey A. Williams of Brownstein Hyatt Farber Schreck, United States. Respondent is Hulmiho Ukolen / Poste restante (“Respondent”), Finland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fiestahenderson.com>, registered with Gransy, s.r.o..
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 7, 2019; the Forum received payment on November 7, 2019.
On November 13, 2019, Gransy, s.r.o. confirmed by e-mail to the Forum that the <fiestahenderson.com> domain name is registered with Gransy, s.r.o. and that Respondent is the current registrant of the name. Gransy, s.r.o. has verified that Respondent is bound by the Gransy, s.r.o. registration agreement, in Czech and English, and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 19, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, in Czech and English, setting a deadline of December 9, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@fiestahenderson.com. Also on November 19, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On December 13, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a member of a group of hospitality and gaming companies operating resort hotel casinos in Nevada, United States, including a resort called the Fiesta Henderson casino resort located in Henderson, Nevada. Complainant has rights in the FIESTA mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,234,239, registered Mar. 23, 1999). Respondent’s <fiestahenderson.com> domain name is identical or confusingly similar to Complainant’s mark because it wholly incorporates the mark, simply adding a geographic descriptor and a generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <fiestahenderson.com> domain name because Respondent is not commonly known by the domain name and is not authorized or licensed to use Complainant’s mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to link to a pay-per-click advertising website featuring hyperlinks to competing hotel services.
Respondent registered and uses the <fiestahenderson.com> domain name in bad faith because Respondent offered to sell the domain name. Also, Respondent uses the domain name to redirect users to a webpage that hosts competing hyperlinks to Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements required to entitle it to transfer of the domain name.
Paragraph 15(a) of 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 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The domain name comprises Complainant’s registered FIESTA trademark, together with the name “Henderson” and the inconsequential gTLD “.com”, which may be ignored. See Rollerblade, Inc. v. Mccrady, D2000-0429 (WIPO June 25, 2000) (finding that top-level domain names like ".com" do not affect the
determination of whether a domain is identical or confusingly similar to a mark).
Although the word Henderson is a common surname, it is also the geographic name of the place in Nevada where Complainant operates its Fiesta Henderson hotel and casino resort. For this reason the addition of the word Henderson does not detract from the distinctiveness of Complainant’s registered FIESTA trademark and accordingly, the domain name is confusingly similar to that mark. See Skype Ltd. v. Sacramento, FA 747948 (Forum Aug. 30, 2006) (“The addition of the geographic term [“Brazil”] does not avoid confusing similarity pursuant to Policy ¶ 4(a)(i).”)
Complainant has established this element.
Policy ¶ 4(c) sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the disputed domain name for purposes of Policy ¶ 4(a)(ii), i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The domain name was registered on September 14, 2018, many years after the registration of Complainant’s FIESTA trademark. It initially resolved to a website displaying links to Fiesta Henderson Hotel Casino, Fiesta Hotel Henderson Nevada, Fiesta Henderson Hotel, Fiesta Henderson and Henderson Nevada, being pay-per-click hyperlinks to Complainant’s competitors. More recently, it resolves to an Afternic website offering the domain name for sale for $7,750.
In the absence of any evidence that Respondent is commonly known by the domain name, the Panel finds that Respondent’s use of the domain name, coupled with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Respondent has made no attempt to do so. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fiestahenderson.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: December 22, 2019.
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