Aliante Gaming, LLC v. Unister GmbH c/o Daniel Kirchhof
Claim Number: FA1003001311235
Complainant is Aliante Gaming, LLC (“Complainant”), represented by Erin
E. Lewis, of c/o Brownstein Hyatt Farber Schreck,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <aliante-station.com>, registered with Psi-Usa, Inc. d/b/a Domain Robot.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 3, 2010.
On March 4, 2010, Psi-Usa, Inc. d/b/a Domain Robot confirmed by e-mail to the National Arbitration Forum that the <aliante-station.com> domain name is registered with Psi-Usa, Inc. d/b/a Domain Robot and that Respondent is the current registrant of the name. Psi-Usa, Inc. d/b/a Domain Robot has verified that Respondent is bound by the Psi-Usa, Inc. d/b/a Domain Robot 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 March 10, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 2010 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@aliante-station.com. Also on March 10, 2010, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 8, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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" through submission of a Written Notice, as defined in Rule 1. 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 <aliante-station.com> domain name is confusingly similar to Complainant’s ALIANTE STATION mark.
2. Respondent does not have any rights or legitimate interests in the <aliante-station.com> domain name.
3. Respondent registered and used the <aliante-station.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Aliante Gaming,
LLC, owns and operates the Aliante Station Casino & Hotel in
Respondent, Unister GmbH c/o Daniel Kirchhof, registered the <aliante-station.com> domain name on July 17, 2009. The disputed domain name resolves to a hotel reservation site that features Complainant’s mark in the banner and displays pictures and information about Complainant’s Aliante Station Hotel. When Internet users attempt to book a room, Respondent’s website redirects them to <hotelreservation.com>, a website that competes with the business of 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.
Complainant owns a federal trademark registration for the
ALIANTE STATION mark with the USPTO (e.g.,
Reg. No. 3,707,782 filed October 22, 2008).
The Panel finds that registering a mark with the USPTO conclusively
establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i), regardless of whether the trademark is registered in
the country where Respondent resides or operates.
Complainant alleges that Respondent’s <aliante-station.com> disputed domain
name is confusingly similar to Complainant’s ALIANTE STATION mark. The only differences between Respondent’s
disputed domain name and Complainant’s mark are the addition of a hyphen, the
deletion of the space between words, and the affixation of the generic
top-level domain (“gTLD”) “.com.” The
Panel finds that the deletion of spaces and the addition of punctuation marks
like hyphens do not adequately distinguish the disputed domain name from
Complainant’s mark for the purposes of Policy ¶ 4(a)(i). See Albertson’s,
Inc. v. Bennett, FA 117013 (Nat. Arb. Forum Sept. 5, 2002) (“[T]he absence
of a space and the hyphen between the words of the mark are not changes that are
capable of overcoming a Policy ¶ 4(a)(i) identical
analysis.”); see also Nintendo of Am.
Inc. v. This Domain Is For
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant argues that Respondent lacks rights and legitimate interests in the disputed domain name. According to Policy ¶ 4(a)(ii), Complainant is required to first present a prima facie case, which then shifts the burden to Respondent to demonstrate rights and legitimate interests in the disputed domain name. Complainant adequately established a prima facie case in these proceedings, but Respondent has failed to respond. The Panel, therefore, finds that Complainant’s allegations are true and that Respondent lacks rights and legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also 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.”). The Panel elects, however, to consider the evidence presented in light of the Policy ¶ 4(c) factors to determine whether Respondent has any rights and legitimate interests in the disputed domain name.
Complainant argues that Respondent is not commonly known by the disputed domain name, which demonstrates that Respondent lacks rights and legitimate interests in the disputed domain name. The WHOIS information for the disputed domain name identifies the registrant as “Daniel Kirchhof.” As the WHOIS information does not provide any evidence to support that Respondent is commonly known by the disputed domain name, the Panel finds that Respondent accordingly lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name “Ilyoup Paik a/k/a David Saunders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because the respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).
Complainant further argues against Respondent’s rights and legitimate interests in the disputed domain name by contesting that Respondent is using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use as required by Policy ¶¶ 4(c)(i) or 4(c)(iii). Respondent’s disputed domain name redirects to a website displaying Complainant’s ALIANTE STATION mark in the banner and providing information about Complainant’s hotel. When Internet users attempt to book a room, Respondent’s website redirects them to a hotel reservation website that competes with Complainant. Respondent presumably receives click-through fees for this redirecting. The Panel finds that using the disputed domain name to mislead and redirect Internet users to other sites competing with Complainant in exchange for financial compensation is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(iii). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Respondent uses the disputed domain name to redirect Internet users to a site clearly displaying Complainant’s mark and information about Complainant’s hotel. Respondent’s resolving website could easily mislead Internet users into believing that Respondent’s web page is affiliated with or sponsored by Complainant. Such confusion disrupts Complainant’s business because Internet users are diverted away from Complainant’s actual website, potentially without their knowledge, and could subsequently end up on a competitor’s site as lost business to Complainant. The Panel finds that Respondent’s efforts to disrupt Complainant’s business in this manner indicate bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant).
Respondent’s diversion of Internet users to its own website which then later redirects Internet users attempting to book a room to a third-party hotel reservation site presumably benefits Respondent as he receives financial compensation for attracting customers and redirecting them to the hotel reservation site. Respondent uses Complainant’s mark in the disputed domain name in order to attract Complainant’s customers and increase traffic to Respondent’s website, which correlates with increased financial gain for Respondent. The Panel finds that Respondent’s attempts to attract Complainant’s customers for Respondent’s own commercial gain demonstrate bad faith registration and use according to Policy ¶ 4(b)(iv). See AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
The Panel finds Policy ¶ 4(a)(iii)
has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <aliante-station.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: April 22, 2010
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