Wynn Resorts Holdings, LLC v. Zhichao Yang
Claim Number: FA2106001953070
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Peter H. Ajemian of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <myappswynnlasvegas.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 28, 2021; the Forum received payment on June 28, 2021.
On June 30, 2021, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <myappswynnlasvegas.com> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. 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 July 2, 2021, the Forum served the Complaint and all Annexes, including a Chinese Language Written Notice of the Complaint, setting a deadline of July 22, 2021 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@myappswynnlasvegas.com. Also on July 2, 2021, the Chinese Language 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 July 27, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
The relevant Registration Agreement for the at-issue domain is written in Chinese making the favored language of the proceedings also in Chinese. However, pursuant to UDRP Rule 11(a), the Panel may find that there is a likely possibility that the Respondent is conversant and proficient in the English language and further that conducting the proceeding in Chinese would unfairly burden Complainant, while conducting the proceeding in English would not unfairly burden Respondent. Respondent targeted a U.S.-based company by incorporating the Complainant’s famous WYNN LAS VEGAS trademark into the at-issue domain name. Doing so constitutes evidence that Respondent will not be prejudiced if the proceedings were to be conducted in English. See Morgan Stanley v. Peng Bi / Bi Peng, FA1709188 (Forum Feb. 16, 2017) (choosing to conduct the proceedings in English in part because “the disputed domain names contain a famous English language mark). Moreover, the domain name has the top-level, “.com,” which primarily targets English speaking internet users. The at-issue domain name also contains English based text in its second-level namely the term “payroll”. Other UDRP panels have found that where Respondent likewise targeted a famous U.S. brand that such proceedings should go forward in English. See, e.g., Country Mutual Insurance Company and Country Life Insurance Company v. Zhichao Yang, FA 1926301 (Forum Jan. 29, 2021) and LoanDepot.com, LLC v. Zhichao Yang, FA 1924673 (Forum Jan. 12, 2021); see also, Textron Innovations Inc. v. xie rui dong, FA1750895 (Forum May 26, 2017) (selecting English as the language of the proceeding in part because the “[r]espondent targeted a U.S.- based company by registering the . . . domain name” and “utilized Anglican characters in its domain”). Pointedly, the website addressed by the at-issue domain names is in English.
Since it appears that Respondent has command of the English language, requiring Complainant to translate all the documents of the proceeding into Chinese would result in Complainant having to incur unnecessary additional costs and might well delay the proceeding. Moreover, Respondent, although having been given appropriate notice of the instant complaint, has failed to offer any objection to going forward in English. Therefore, in light of all the foregoing, the Panel finds this proceeding should continue in English.
A. Complainant
Complainant contends as follows:
Complainant runs multiple hotels, casinos, and resorts worldwide.
Complainant’s has multiple registrations for trademarks containing WYNN. Complainant shows it has rights in the WYNN LAS VEGAS mark through the mark’s registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <myappswynnlasvegas.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds a series of generic, descriptive, and geographic terms, along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <myappswynnlasvegas.com> domain name. Respondent is not commonly known by the at-issue domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead hosts parked pay-per-click links on the at-issue domain name’s website.
Respondent registered and uses the <myappswynnlasvegas.com> domain name in bad faith. Respondent attracts internet users for commercial gain by hosting parked pay-per-click links on the domain name’s resolving website. Respondent inactively holds the domain name. Respondent registered the at-issue domain name with knowledge of Complainant’s rights in the WYNN marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the WYNN LAS VEGAS trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the WYNN LAS VEGAS trademark.
Respondent uses the at-issue domain name to address a webpage that presents pay-per-click hyperlinks.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration for its WYNN LAS VEGAS trademark is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <myappswynnlasvegas.com> domain name contains Complainant’s WYNN LAS VEGAS trademark less its spaces, prefixed by the generic term “myapp” (or terms “my” and “app”), and with all followed by a domain name-necessary top-level domain name, here “.com.” The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <myappswynnlasvegas.com> domain name from Complainant’s WYNN LAS VEGAS mark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <myappswynnlasvegas.com> domain name is confusingly similar to Complainant’s WYNN LAS VEGAS trademark. See Royal Bank of Scotland Grp. plc et al. v. Demand Domains, FA 714952 (Forum Aug. 2, 2006) (“The Panel finds that merely by misspelling Complainants’ mark, Respondent has not sufficiently differentiated the <privelage.com> domain name from the PRIVILEGE mark under Policy ¶ 4(a)(i).”); see also, Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name ultimately identifies the domain name’s registrant as “Zhichao Yang” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <myappswynnlasvegas.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <myappswynnlasvegas.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent uses the confusingly similar <myappswynnlasvegas.com> domain name to address a parking website displaying pay-per-click links. Respondent’s use of the confusingly similar domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <myappswynnlasvegas.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First as mentioned above regarding rights and legitimate interests, Respondent uses its confusingly similar <myappswynnlasvegas.com> domain name to display pay-per-click hyperlinks. Doing so shows Respondent’s bad faith registration and use of the at-issue domain name under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Next, although not argued by Complainant Respondent has suffered numerous adverse UDRP decisions including a recent unfavorable decision involving Complainant that has a fact pattern near identical to that of the instant dispute. See, Morgan Stanley v. Zhichao Yang, FA 1932877 (Forum June 23, 2003); see also, Wynn Resorts Holdings, LLC v. Zhichao Yang, FA1953082 (Forum July 27, 2021). Respondent’s repeated cybersquatting evidences a pattern of domain name abuse and suggests Respondent’s bad faith in the instant case pursuant to Policy ¶ 4(b)(ii). See Tommy John, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA2001001878688 (Forum Feb. 6, 2020) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
Finally, Respondent registered <myappswynnlasvegas.com> knowing that Complainant had trademark rights in the WYNN LAS VEGAS mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark in the United States and internationally. It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <myappswynnlasvegas.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <myappswynnlasvegas.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 28, 2021
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