Caesars License Company, LLC v. Ez LLC / Ezlease Propertys / Luxury Entertainment LLC / Registration Administrator / DRS - Domain Registrar Services / Keith Crawford / This Domain is for sale
Claim Number: FA1405001560221
Complainant is Caesars License Company, LLC (“Complainant”), represented by Nadya Sand of Alston & Bird, LLP, Georgia, USA. Respondent is Ez LLC / Ezlease Propertys / Luxury Entertainment LLC / Registration Administrator / DRS - Domain Registrar Services / Keith Crawford / This Domain is for sale (“Respondent”), Nevada, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are have been registered with the following registrars.
GODADDY.COM, LLC is the registrar for <linqlasvegas.com>, <linqlasvegasnv.com>, <linqentertainment.com>, <entertainmentprojectlinq.com>, <the-linq-las-vegas.com>, <thelinqhotellasvegas.com>, <thelinqentertainment.com>, <entertainmentlinq.com>, <thelinqhotel.com>, <lasvegasthelinq.com>, and <linq-las-vegas.com>.
PDR Ltd. d/b/a PublicDomainRegistry.com is the registrar for <linqhighrollertickets.com>.
FABULOUS.COM PTY LTD. is the registrar for <thelinqs.com>.
ENOM, INC. is the registrar for <thelinqshopslasvegas.com>.
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.
Mark McCormick as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 19, 2014; the National Arbitration Forum received payment on May 19, 2014.
On May 20, 2014, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <linqlasvegas.com>, <linqlasvegasnv.com>, <linqentertainment.com>, <entertainmentprojectlinq.com>, <the-linq-las-vegas.com>, <thelinqhotellasvegas.com>, <thelinqentertainment.com>, <entertainmentlinq.com>, <thelinqhotel.com>, <lasvegasthelinq.com>, and <linq-las-vegas.com> domain names are registered with GODADDY.COM, LLC, and that Respondent is the current registrant of the names.
On May 21, 2014, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <linqhighrollertickets.com> domain name was registered with PDR Ltd. and that Respondent is the current registrant of the name.
On May 21, 2014, FABULOUS.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <thelinqs.com> domain name is registered with FABULOUS.COM PTY LTD. and that Respondent is the current registrant of the name.
On May 21, 2014, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <thelinqshopslasvegas.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name.
All of the registrars at issue have verified that Respondent is bound by the respective registration agreement and thus Respondent 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 May 27, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 16, 2014 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@linqlasvegasnv.com, postmaster@thelinqhotel.com, postmaster@linqlasvegas.com, postmaster@entertainmentlinq.com, postmaster@entertainmentprojectlinq.com, postmaster@linqentertainment.com, postmaster@lasvegasthelinq.com, postmaster@thelinqhotellasvegas.com, postmaster@thelinqentertainment.com, postmaster@thelinqs.com, postmaster@linqhighrollertickets.com, postmaster@linq-las-vegas.com, postmaster@the-linq-las-vegas.com, and postmaster@thelinqshopslasvegas.com. Also on May 27, 2014, 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.
Respondent submitted a timely and compliant response on June 11, 2014.
Complainant submitted a timely and complete Additional Submission on June 16, 2014.
On June 18, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Mark McCormick 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant uses THE LINQ mark in connection with its operation of an open-air dining and retail commercial district in Las Vegas. In anticipation of the project, Complainant filed for registration of the mark with the United States Patent and Trademark Office (“USPTO”) on October 20, 2010, and the mark was registered November 27, 2012. Complainant announced the project on August 17, 2011. On the same day, Respondent made its first disputed domain name registration.
The multiple disputed domain names registered by Respondent are confusingly similar to Complainant’s THE LINQ mark. The addition of generic terms merely enhances the confusion.
Respondent lacks rights and legitimate interests in these domain names. Complainant has not authorized their use, Respondent is not commonly known by them, and Respondent uses them to host websites for commercial gain. Included are links to third-party websites of competitors of Complainant.
Respondent has registered and used the domain names in bad faith. Respondent has sought to capitalize on the confusion for its commercial gain and has offered domain names for sale to Complainant and one has been offered for sale on the domain name website.
B. Respondent
Respondent contends that the disputed domain names are not confusingly similar to Complainant’s mark because they contain a geographical reference to Las Vegas which is not included in Complainant’s mark. Respondent also asserts it has used the mark longer than Complainant has and therefore has rights and legitimate interests in its use. Respondent denies acting in bad faith and accuses Complainant of teaming with Google to keep the disputed domain names off Google’s web searches. Respondent also asserts that it is always willing to sell its domain names for the right price. It also accuses Complainant of reverse domain name hijacking and has raised laches as a defense.
C. Additional Submissions
Complainant contends in an additional submission that Respondent has admitted its control of all of the disputed domain names, thus eliminating that as an issue. Complainant also contends that its USPTO registration of the mark predates Respondent’s use of the mark and, in addition, contends that the doctrine of laches has no application in a UDRP proceeding. Complainant denies the merits of each of Respondent’s contentions.
Complainant applied for a USPTO trademark registration of its The LINQ mark on October 19, 2010, and the registration was granted November 27, 2012, making the registration effective as of October 19, 2010. Respondent’s first disputed domain name registration was made August 17, 2011, the date on which Complainant announced its open-air and retail district commercial project, using the mark.
Respondent is not commonly known by any of the disputed domain names. Respondent’s use of the domain names has been to host third-party websites promoting unrelated and sometimes competing goods and services for commercial gain.
Respondent has offered to sell the domain names to Complainant for amounts far in excess of its out-of-pocket expenses. Respondent registered and uses the disputed domain names to take advantage of their similarity to Complainant’s mark to attract Internet users to the third-party websites for commercial gain.
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.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The record demonstrates that all of the disputed domain names are ultimately controlled by “EzLease Propertys.” They all have a common mailing address which belongs to EzLLC and/or EzLease Propertys. When coupled with Respondent’s admission that it owns all but one of the disputed domain names, and the fact that it lists that domain name for sale on its own company website, the panel determines that all of the disputed domain names are owned by a single Respondent who is using multiple aliases. The Complaint relates to all of the domain names within the meaning of Paragraph 3(c) of the URDP rules.
The disputed domain names are confusingly similar to Complainant’s THE LINQ mark. Complainant’s rights in the mark are established by its trademark registration, which relates back to the date of Complainant’s application and predates Respondent’s registrations by about eight months. The confusing nature of the disputed domain names is not affected by Respondent’s use of punctuation marks and the addition of gTLD’s. See Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000). Moreover, the geographic terms added by Respondent do not distinguish the domain names from the mark but merely imply a geographical context for its use. See Harrah’s License Company, LLC v. Eric Hawkins, FA1225284 (Nat’l Arb. Forum 2008). The addition of generic terms does nothing to mitigate the confusion inherent in the disputed domain names. See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004). Complainant has established that all of the disputed domain names are confusingly similar to its mark within the meaning of Policy ¶4(a)(i).
Because Complainant made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, Respondent bears the burden to show it does have rights and legitimate interests in the domain names. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
Respondent is not commonly known by the domain names. Its use of the names subsequent to their registration does not establish a right or legitimate interest at the time of their registration. See True Value Co. v. Andrew Bucklin d/ba True Value Web, FA 1497691 (Nat. Arb. Forum June 13, 2013). Moreover, Respondent’s use of the domain names to take advantage of the confusion to promote advertising for third parties is not a bona-fide offering of goods or services or a legitimate noncommercial or fair use. See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006). Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain names within the meaning of Policy ¶4(c)(i).
Respondent’s offer to sell the domain names to Complainant for amounts far in excess of out-of-pocket expenses is evidence of its bad faith registration and use. See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007). Furthermore, it is obvious that Respondent was prompted to register the domain names by a desire to capitalize on the confusion caused by their similarity to Complainant’s mark for commercial purposes, either as leverage to extract their purchase by Complainant or for commercial gain through the promotion of their use to advertise third-party goods and services. Respondent sought to take advantage in this way of the confusion caused by the similarity of the domain names to Complainant’s mark. This is strong evidence of bad faith. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003). The timing of Respondent’s registration was plainly opportunistic and for an impermissible purpose. See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006). Complainant has met its burden to show that Respondent’s registration and use of the domain names was in bad faith within the meaning of Policy ¶4(b)(iv).
The panel finds that the doctrine of laches is not available in a UDRP proceeding. See Broadcasting Board of Governors v. Voice Of America, FA1414846 (Nat. Arb. Forum Dec. 21, 2011). Even if the defense was available, no unreasonable delay in bringing the action occurred here. Moreover, because Complainant has established all of the elements of Policy ¶4(a), Complainant cannot be found guilty of reverse domain name hijacking. See World Wrestling Fed’n Entm’t, Inc. v. Ringside Collectibles, D2000-1306 (WIPO Jan. 24, 2001).
Because Complainant has established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <linqlasvegasnv.com>, <thelinqhotel.com>, <linqlasvegas.com>, <entertainmentlinq.com>, <entertainmentprojectlinq.com>, <linqentertainment.com>, <lasvegasthelinq.com>, <thelinqhotellasvegas.com>, <thelinqentertainment.com>, <thelinqs.com>, <linqhighrollertickets.com>, <linq-las-vegas.com>, <the-linq-las-vegas.com>, and <thelinqshopslasvegas.com> domain names be TRANSFERRED from Respondent to Complainant.
Mark McCormick, Panelist
Dated: July 2, 2014
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