Las Vegas Sands Corp. v. jingjing chen
Claim Number: FA1510001644709
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Michael J. McCue of LEWIS ROCA ROTHGERBER LLP, Nevada, USA. Respondent is jingjing chen (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <venetian.casino>, registered with GoDaddy.com, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 30, 2015; the Forum received payment on October 30, 2015.
On October 30, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <venetian.casino> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 2, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 23, 2015 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@venetian.casino. Also on November 2, 2015, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On November 30, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 issues 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’s rights in the VENETIAN mark stem from registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,322,513, registered February 22, 2000). Respondent’s <venetian.casino> domain name includes Complainant’s entire VENETIAN mark and the top-level domain “.casino” which does not differentiate the domain sufficiently to prevent a finding of confusing similarity.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and has not been authorized to use the VENETIAN mark in any manner. Further, Respondent’s domain does not resolve to an active website and therefore cannot be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent has registered and is using the disputed domain name in bad faith. Respondent’s bad faith can be inferred through failing to make the domain resolve to an active website. Additionally, Respondent’s use of Complainant’s whole mark in a domain indicates that Respondent is attempting to create a likelihood of confusion to attract internet users. Finally, Respondent had actual knowledge of Complainant’s VENETIAN mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Las Vegas Sands Corp. of Las Vegas, NV, USA. Complaint is the owner of the numerous domestic registrations for the mark VENETIAN and related marks constituting the family of VENETIAN marks. Complainant has continuously used the mark since at least as early as 1999 in connection with its provision of casino, hotel resort, and related entertainment goods and services.
Respondent is Jingjing Chen of Shangrao, Jiangxi China. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes that the domain at issue was created on or about June 13, 2015.
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(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.”).
Complainant has rights in the VENETIAN mark based on registration of the mark with the USPTO (e.g., Reg. No. 2,322,513, registered February 22, 2000). Past panels have found find that a complainant has rights in a mark based on registration of the mark with the USPTO. See Clear!Blue Holdings, L.L.C. v. NaviSite, Inc., FA 888071 (Nat. Arb. Forum Mar. 5, 2007) (“The Panel finds that Complainant has established trademark rights in the CLEAR BLUE marks through introduction of the certificates for its U.S. registration for those trademarks”). The Panel here finds that Complainant has adequately demonstrated a basis for its rights in the VENETIAN mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s disputed <venetian.casino> domain is confusingly similar to the VENETIAN mark. The disputed domain differs from the mark merely through the addition of the top-level domain “.casino.” While in most cases the presence of a top-level domain is not relevant to an analysis of confusing similarity, the presence of a top-level domain may be relevant when the top-level domain is related to the mark and sometimes may enhance confusing similarity. See Trulia, Inc. v Armen A, FA1586491 (Nat. Arb. Forum Dec. 2, 2014) (finding that the <trulia.rentals> domain name is confusingly similar to the TRULIA mark under Policy ¶ 4(a)(i)). The Panel here finds that Respondent’s disputed <venetian.casino> domain is confusingly similar to the VENETIAN mark in which Complainant asserts rights pursuant to Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant claims that Respondent has not been commonly known by the disputed domain name or authorized to use the VENETIAN mark. WHOIS information associated with the domain identifies Respondent as “Jingjing Chen,” which does not resemble the disputed domain name. Prior panels have found a respondent to not be commonly known by a disputed domain name based on WHOIS information and a lack of authorization from a complainant. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name). The Panel here finds that Respondent has not been commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
Complainant contends that Respondent’s use of the disputed domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant claims that Respondent’s disputed domain fails to resolve to an active webpage. Prior panels have found that failure to make active use of a domain name does not fall within the parameters of Policy ¶ 4(c)(i) or ¶ 4(c)(iii). See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). The Panel here finds no evidence of use connected with the disputed domain name, therefore Respondent’s use is not consistent with a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and 4(c)(iii), respectively.
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As the Respondent has not provided a response to this action, the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant contends that Respondent’s use of Complainant’s whole mark in a domain indicates that Respondent is attempting to create a likelihood of confusion to attract internet users. Previous panels have found bad faith under Policy ¶ 4(b)(iv) even when there is non-use of a domain name where any use of the domain would be infringing. See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose); Phat Fashions, LLC v. Kruger, FA 96193 (Nat. Arb. Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though the respondent has not used the domain name because “it makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”). The Panel here finds that Respondent has acted in bad faith under Policy ¶ 4(b)(iv).
Complainant also claims that Respondent has registered and is using the disputed domain name in bad faith. To support this claim, Complainant asserts that Respondent’s bad faith is demonstrated through failing to make the domain resolve to an active website. Prior panels have found bad faith where a respondent failed to make active use of a disputed domain that infringed on another’s mark. See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that [failure to make an active use] of a domain name permits an inference of registration and use in bad faith). The Panel here finds no evidence of use connected with the disputed domain name and therefore that Respondent has acted in bad faith under Policy ¶ 4(a)(iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <venetian.casino> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: December 14, 2015
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