Station Casinos LLC v. Domain Administrator / DVLPMNT MARKETING, INC.
Claim Number: FA1601001655034
Complainant is Station Casinos LLC (“Complainant”), represented by Erin Lewis of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is Domain Administrator / DVLPMNT MARKETING, INC. (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <redrockresort.com>, registered with DNC Holdings, Inc.
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 January 4, 2016; the Forum received payment on January 4, 2016.
On January 6, 2016, DNC Holdings, Inc. confirmed by e-mail to the Forum that the <redrockresort.com> domain name is registered with DNC Holdings, Inc. and that Respondent is the current registrant of the name. DNC Holdings, Inc. has verified that Respondent is bound by the DNC Holdings, Inc. 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 January 11, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 1, 2016 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@redrockresort.com. Also on January 11, 2016, 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 February 4, 2016, 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.
A. Complainant
Complainant contends as follows:
Complainant has rights in the RED ROCK STATION mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,076,981, filed on March 2, 2000, registered on April 4, 2006). Complainant has numberous related trademarks registrations such as RED ROCK, RED ROCK CASNO RESORT SPA and others.
Respondent’s <redrockresort.com> domain name is confusingly similar to the RED ROCK STATION mark because it contains the dominant RED ROCK portion of the mark along with the descriptive term “resort” and the generic top-level domain (“gTLD”) “.com.”
Respondent is not commonly known by the <redrockresort.com> domain name because the available WHOIS information lists “DVLPMNT MARKETING, INC” as Registrant and because Complainant has not authorized Respondent to use the RED ROCK STATION mark. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website hosts pay-per-click links to competitors of Complainant.
Respondent uses the <redrockresort.com> domain name in bad faith because Respondent offers the domain for sale and because the resolving website hosts pay-per-click links to competitors of Complainant. Respondent also registered the <redrockresort.com> domain name in bad faith because it did so with actual or constructive knowledge of Complainant’s rights in the RED ROCK STATION mark and because it did so in a way indicative of opportunistic bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the RED ROCK STATION mark through its registration of such mark with the USPTO.
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 its RED ROCK STATION trademark.
Respondent uses the at-issue domain name to offer it for sale and to address a website hosting pay-per-click links to competitors 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."
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 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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant establishes its rights in the RED ROCK STATION mark through its USPTO trademark registration of such mark. See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO). Complainant’s rights exist notwithstanding that Respondent may operate outside the jurisdiction of the trademark’s registrar. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction). The Panel notes that although this decision focuses on Complainant’s RED ROCK STATION trademark, that other registered trademarks owned by Complainant might equally serve to satisfy the requirements of Policy ¶ 4(a)(i).
Respondent’s <redrockresort.com> domain name incorporates the dominant portion, “red rock,” of Complainant’s RED ROCK STATION trademark, adds the suggestive term “resort” and appends the gTLD, “.com,” to the resulting string. However, the differences between Respondent’s domain name and Complainant’s trademark are ineffective in distinguishing one from the other for the purposes of the Policy. Therefore, the Panel finds that the at-issue domain name is confusingly similar to Complainant’s trademark under Policy ¶ 4(a)(i). See Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (holding that “the Domain Name is confusingly similar to Complainant’s ‘TESCO PERSONAL FINANCE’ mark in that it merely omits the descriptive term ‘personal.’”).
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 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances 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.
WHOIS information for the <redrockresort.com> domain name lists “Domain Administrator / DVLPMNT MARKETING, INC.” as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <redrockresort.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s uses the at-issue <redrockresort.com> domain name to address a website hosting pay-per-click links to Complainant’s competitors including links to “Las Vegas Hotel Deals” and “Cheapest Las Vegas Package.” Using the domain name in this manner is 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
The domain name was registered and used in bad faith. As discussed below, bad faith circumstances related to Policy ¶ 4(b), as well as other 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, Respondent generally offered the at-issue domain name for sale by displaying an offer to sell the domain name on the <redrockresort.com> website. Doing so suggests bad faith use under Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”).
Next as mentioned above regarding Policy ¶ 4(a)(ii), Respondent hosts pay-per-click links to Complainant’s competitors on the <redrockresort.com> website. By using the domain name in this manner Respondent has engaged in a practice that is disruptive to Complainant’s business and thereby demonstrates its bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). Further, Respondent clearly intends that the confusingly similar <redrockresort.com> domain name attract Internet users, who may believe they are dealing with Complainant, so that it may commercial gain via the pay-per-click links displayed on the <redrockresort.com> website. These circumstances demonstrate bad faith under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Additionally, Respondent registered the <redrockresort.com> domain name January 1, 2004, shortly after Complainant received significant media attention concerning its trademark. Past panels have characterized a respondent’s taking advantage of a recently promoted trademark as “opportunistic bad faith.” This characterization is applicable to the instant case. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the “domain names are so obviously connected with the Complainants that the use or registration by anyone other than Complainants suggests ‘opportunistic bad faith’”); see also Reuters Ltd. v. Teletrust IPR Ltd., D2000-0471 (WIPO Sept. 8, 2000) (finding that the respondent demonstrated bad faith where the respondent was aware of the complainant’s famous mark when registering the domain name as well as aware of the deception and confusion that would inevitably follow if he used the domain names).
Finally, Respondent registered the <redrockresort.com> domain name knowing that Complainant had trademark rights in the RED ROCK STATION mark. Respondent’s prior knowledge is evident from the temporal proximity of significant media announcements regarding Complainant’s trademark and Respondent’s registration of the domain name, as well as from Respondent’s inclusion of the suggestive term “resort” in the domain name. Given the forgoing, it is 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 indicates that Respondent registered and used the <redrockresort.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. 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 <redrockresort.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 4, 2016
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