Wynn Resorts Holdings, LLC v. Aron Silver
Claim Number: FA0711001110104
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Kelley
Nyquist, of Greenberg Traurig, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wynnsportsbook.com>, registered with GoDaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 16, 2007; the National Arbitration Forum received a hard copy of the Complaint on November 19, 2007.
On November 16, 2007, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <wynnsportsbook.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On November 19, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 10, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@wynnsportsbook.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 17, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <wynnsportsbook.com> domain name is confusingly similar to Complainant’s WYNN mark.
2. Respondent does not have any rights or legitimate interests in the <wynnsportsbook.com> domain name.
3. Respondent registered and used the <wynnsportsbook.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Wynn Resort Holdings, LLC, a
Respondent registered the <wynnsportsbook.com> domain name on September 18, 2005. Respondent’s disputed domain name resolves to a parked website featuring links to various third-party websites offering Las Vegas-related hotel, casino, and entertainment services in direct competition with Complainant.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
The Panel first finds that Complainant’s numerous trademark registrations of the WYNN mark and related marks with the USPTO sufficiently establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Complainant alleges that the <wynnsportsbook.com> domain name is confusingly similar to Complainant’s WYNN mark, as it uses the entire WYNN mark and merely adds the generic terms “sports” and “book,” which are descriptive of Complainant’s gambling services. Previous panels have found, and this Panel so finds, that the addition of generic terms that describe a complainant’s business to a mark does not sufficiently distinguish a disputed domain name from a corresponding mark. Moreover, the addition of the generic top-level domain “.com” is irrelevant for the purposes of Policy ¶ 4(a)(i), as a top-level domain is a required element of all domain names. Therefore, the Panel finds that Respondent’s <wynnsportsbook.com> domain name is confusingly similar to Complainant’s WYNN mark pursuant to Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”).
The Panel thus finds that Policy ¶ 4(a)(i)
has been satisfied.
Under Policy ¶ 4(a)(ii), the initial burden lies with Complainant to show that Respondent lacks rights and legitimate interests in the <wynnsportsbook.com> domain name. Once Complainant makes a prima facie case, the burden then shifts to Respondent to show that it does have rights or legitimate interests. In the instant case, the Panel finds that Complainant has established a prima facie case as contemplated by the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to respond to the Complaint allows the Panel to presume that Respondent lacks rights and legitimate interests in the <wynnsportsbook.com> domain name. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). Nevertheless, the Panel will still examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent’s <wynnsportsbook.com>
domain name resolves to a website featuring links to Las Vegas-based hotel
and entertainment services in competition with Complainant, and the Panel
presumes that Respondent earns “click-through” fees when Internet users click
on these links. The Panel finds that
such use constitutes neither a bona fide offering
of goods or services under Policy ¶ 4(c)(i) nor a
legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v.
Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002)
(finding that the respondent’s diversionary use of the complainant’s marks to
send Internet users to a website which displayed a series of links, some of
which linked to the complainant’s competitors, was not a bona fide
offering of goods or services); see also Gardens Alive, Inc. v. D&S
Linx, FA 203126 (Nat. Arb. Forum Nov. 20,
2003) (finding that the respondent used a domain name for commercial benefit by
diverting Internet users to a website that sold goods and services similar to
those offered by the complainant and thus, was not using the name in connection
with a bona fide offering of goods or services nor a legitimate
noncommercial or fair use).
Moreover, Respondent’s WHOIS information indicates that Respondent is “Aron Silver,” and there is no other evidence in the record to suggest that Respondent is commonly known by the <wynnsportsbook.com> domain name. Also, Complainant has not given Respondent permission to use its WYNN mark for any purpose. The Panel further finds that Respondent is not commonly known by the disputed domain name and thus lacks rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
The Panel thus finds that Policy ¶ 4(a)(ii)
has been satisfied.
Finally, Complainant contends that Respondent registered and is using the <wynnsportsbook.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). As the links featured on the website that resolves from the disputed domain name offer services in competition with Complainant, the Panel finds that this constitutes a disruption of Complainant’s business and qualifies as bad faith registration and use under Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Since Respondent’s <wynnsportsbook.com> domain name is confusingly similar to Complainant’s WYNN mark, the Panel finds that Respondent is attempting to attract, for commercial gain, Internet users who may be confused as to Complainant’s affiliation with the disputed domain name and corresponding website. This constitutes further evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
The Panel thus finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wynnsportsbook.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: December 27, 2007
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