GNLV, LLC dba Golden Nugget v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA2012001925863
Complainant is GNLV, LLC dba Golden Nugget ("Complainant"), represented by Lauri S. Thompson of Greenberg Traurig, LLP, Nevada, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD ("Respondent"), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <goldennuggetonelinecasino.com>, registered with Media Elite Holdings Limited.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 21, 2020; the Forum received payment on December 21, 2020.
On December 22, 2020, Media Elite Holdings Limited confirmed by email to the Forum that the <goldennuggetonelinecasino.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited registration agreement 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 December 29, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 19, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@goldennuggetonelinecasino.com. Also on December 29, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 January 24, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 develops and operates casino resort hotels, including the Golden Nugget in Las Vegas, Nevada, which opened in 1946. Complainant and a predecessor in interest have used the GOLDEN NUGGET mark in connection with such services since at least as early as 1946. Complainant owns various U.S. trademark registrations for GOLDEN NUGGET, including registrations for the mark in standard character form; and also asserts common law rights in the mark, claiming that it is known worldwide. In addition to its casino resort hotels, Complainant offers online casino gambling under the GOLDEN NUGGET mark. An official report of online gambling revenue in New Jersey indicates that Complainant generated over $28 million in such revenue in the month of October 2020. In late June 2020, plans were revealed to take Complainant's online casino gambling business public.
The disputed domain name <goldennuggetonelinecasino.com> was registered in November 2020. The domain name is being used for a website consisting of pay-per-click links to hotels, casinos, and online gaming. The domain name is also listed for sale at a domain name marketplace. Complainant states that Respondent is not commonly known by the disputed domain name and that Complainant has not licensed or authorized Respondent to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <goldennuggetonelinecasino.com> is confusingly similar to its GOLDEN NUGGET mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <goldennuggetonelinecasino.com> incorporates Complainant's registered GOLDEN NUGGET trademark, omitting the space and adding the generic terms "online" (misspelled as "oneline") and "casino," both of which relate to Complainant's business, and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Capital One Financial Corp. v. Private Registration / WhoisGuardService.com, FA 1620195 (Forum June 19, 2015) (finding <capitaloneonelinebanking.com> confusingly similar to CAPITAL ONE); Hard Rock Cafe International (USA), Inc. v. GoldenPalace N.V., FA 1837932 (Forum May 4, 2019) (finding <hardrockonlinecasino.com> confusingly similar to HARD ROCK CASINO); Las Vegas Sands, LLC v. Casino Co. (CasinoCo), D2006-0978 (WIPO Sept. 29, 2006) (finding <sandsonlinecasino.com> confusingly similar to SANDS); Caesars World, Inc. v. Universalinteractives, D2001-0951 (WIPO Oct. 3, 2001) (finding <caesarspalaceonlinecasino.com> confusingly similar to CAESARS PALACE). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to display pay-per-click links, at least some of which are for competitors of Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., La Société des Bains de Mer et du cercle des etrangers à Monaco v. 24-7 Home and Leisure, D2008-1597 (WIPO Dec. 18, 2008) (finding lack of rights or interests in similar circumstances); Donald J Trump & Trump Hotels & Casino Resorts Inc v. Cybergaming Inc, FA 101533 (Forum Dec. 3, 2001) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "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." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] 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."
Respondent registered a domain name combining Complainant's well-known mark with generic terms related to its business, and is using the domain name to display pay-per-click links, at least some of which are for competitors of Complainant. In addition, the domain name appears to be registered in the name of a privacy registration service, concealing the identity of the beneficial registrant; it is being offered for sale through a domain name marketplace, presumably at a price exceeding Respondent's out-of-pocket costs; and the registration occurred not long after it was revealed that Complainant's online gambling business would be taken public. Each of these circumstances is indicative or at least suggestive of bad faith registration and use under the Policy. See, e.g., Mediacom Communications Corp. v. Domain Administrator / Fundacion Privacy Services LTD, FA 1913479 (Forum Oct. 23, 2020) (pay-per-click links; privacy registration service); loanDepot.com, LLC v. David Robnett / Expert Lenders, Inc., FA 1800959 (Forum Sept. 17, 2018) (timing of registration; offer for sale). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <goldennuggetonelinecasino.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 25, 2021
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