Las Vegas Sands Corp. v. Dave Chandler
Claim Number: FA1610001696797
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Michael J. McCue, Nevada, United States. Respondent is Dave Chandler (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lasvegassands.club>, registered with NameCheap, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 5, 2016; the Forum received payment on October 5, 2016.
On October 6, 2016, NameCheap, Inc. confirmed by e-mail to the Forum that the <lasvegassands.club> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 October 7, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 27, 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@lasvegassands.club. Also on October 7, 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 November 3, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <lasvegassands.club> domain name is identical to Complainant’s LAS VEGAS SANDS mark.
2. Respondent does not have any rights or legitimate interests in the <lasvegassands.club> domain name.
3. Respondent registered and uses the <lasvegassands.club> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns and operates renowned resorts and casinos in the United States, Macau, and Singapore. Complainant has registered its LAS VEGAS SANDS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,418,885, registered Oct. 15, 2013).
Respondent registered the <lasvegassands.club> domain name on March 26, 2016, and has used it to offer it for sale to Complainant for $1,500.00.
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 (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 Panel finds that Complainant has demonstrated rights in its LAS VEGAS SANDS mark through registration with the USPTO (Reg. No. 4,418,885, registered Oct. 15, 2013), which is sufficient for purposes of Policy ¶ 4(a)(i). See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Complainant argues that the <lasvegassands.club> domain name is identical to Complainant’s mark because it uses the entire mark and merely adds a necessary gTLD. The Panel agrees and finds the Respondent’s <lasvegassands.club> domain name is identical to Complainant’s LAS VEGAS SANDS mark. See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 (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); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant asserts that Respondent has no rights or legitimate interests in the domain name, and is not commonly known by the domain name. Complainant states that it has not authorized Respondent to uses its LAS VEGAS SANDS mark. The WHOIS information lists “Dave Chandler” as registrant of the disputed domain name. The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant maintains that Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant shows that Respondent makes no active use of the domain name, except to redirect Internet users to a website that advertises domain registration services, implying that the domain name is for sale. This does not amount to a bona fide offering of goods or services. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“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).”). This use does not qualify as a legitimate noncommercial or fair use. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (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 thus finds that Respondent has not shown rights or legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) and (iii).
Complainant alleges that, after its representative sent Respondent a cease and desist letter on April 5, 2016, Respondent called the representative and offered to sell the domain name to Complainant for $1,500.00. Complainant states that it asked Respondent if $1,500.00 exceeded Respondent’s out-of-pocket costs to register the domain name, and Respondent stated that its fees are not limited to its costs. However, panels have routinely determined that a respondent lacks rights and legitimate interests in a domain name where it offers to sell the domain name for an amount that exceeds its out-of-pocket costs to acquire the domain name. See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name). Accordingly, the Panel finds that Respondent lacks rights and legitimate interests in the domain name.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant maintains that Respondent offered to sell the domain name for an amount in excess of its out-of-pocket costs. Panels have concluded that a respondent’s offer to sell a domain name for an amount that exceeds its out-of-pocket costs to acquire the domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name). Thus, the Panel finds that Respondent registered and is using the domain name in bad faith under Policy ¶ 4(b)(i).
Complainant contends that Respondent has engaged in a pattern of bad faith registration and use, which is made evident by the domain names that were held by Respondent and suspended in response to recent URS actions. See Servicemaster Brands L.L.C. v. Dave Chandler et al., FA 1667647 (Forum April 8, 2016); Arcelormittal v. Dave Chandler et al., FA 1674762 (Forum May 19, 2016); and Schneider Electric v. Dave Chandler, FA 1677069 (Forum June 17, 2016). Prior panels have decided that a respondent has engaged in a pattern of bad faith registration and use where there exist prior adverse UDRP decisions against a respondent. See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”). The Panel similarly finds that Respondent has engaged in a pattern of bad faith registration and use under Policy ¶ 4(b)(ii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lasvegassands.club> domain name BE TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 6, 2016
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