Donald J.
Trump and Trump Hotesl & Casino Resorts, Inc. v. Lance Zeaman d/b/a
Atlantic City Connection
Claim Number: FA0111000101572
PARTIES
Complainant is Donald J. Trump and Trump Hotels & Casino Resorts, Inc., New York, NY (“Complainant”) represented by Melissa L. Klipp, of Drinker Biddle & Shanley LLP. Respondent is Lance Zeaman Atlantic City Connection, Atlantic City, NJ (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAMES
The domain names at issue are <trumptajonline.com> and <trumpmarinacasino.com>, registered with Tierranet.
PANEL
On December 3, 2001 pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist.
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on October 30, 2001; the Forum received a hard copy of the Complaint on October 31, 2001.
On November 5, 2001, Tierranet confirmed by e-mail to the Forum that the domain names <trumptajonline.com> and <trumpmarinacasino.com> are registered with Tierranet and that Respondent is the current registrant of the name. Tierranet has verified that Respondent is bound by the Tierranet 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 November 6, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of November 26, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@trumptajonline.com, postmaster@trumpmarinacasino.com by e-mail.
Having received no Response from Respondent within the 20 days allowed under ICANN Rule 5(a), using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
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.” 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.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from the Respondent to the Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The <trumptajonline.com> and <trumpmarinacasino.com> domain names are confusingly similar to
Complainant's marks.
Respondent has no rights or legitimate interests in the disputed domain
names.
Respondent registered the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a timely Response. A letter dated November 30, 2001 was received, but having been filed out of time it was not considered.
FINDINGS
Since 1984, Complainant has used the TRUMP mark in commerce in connection with casino and entertainment services. Complainant has invested millions of dollars into promoting the TRUMP mark and building reputation and goodwill in its services. The marks have been registered in the United States with the Patent and Trademark Office, and in addition, Complainant maintains numerous marks including the word TRUMP to designate services ranging from casinos to golfing including: TRUMP TAJ MAHAL and TRUMP MARINA.
Complainant also has a significant presence over the Internet. Complainant operates several websites incorporating its various marks including: <trump.com>, <trumptaj.com>, <trumpplaza.com>, and <trumpmarina.com>. Through Complainant's longstanding use of the TRUMP mark in domain names and Web addresses the public has come to expect that domain names incorporating the mark be associated with the Complainant.
Respondent registered the disputed domain names on March 17, 2001. Respondent has linked the disputed domain names to the same website featuring several advertisements. The advertisements are for online gambling sites, an adult content site, and websites for several hotel and casino facilities including ones for Complainant and Complainant's competitors. Respondent is profiting from the advertisements and links.
DISCUSSION
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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Identical and/or
Confusingly Similar
Complainant, through its registration and use, has established that it has rights in the TRUMP, TRUMP TAJ MAHAL, TRUMP MARINA, and TRUMP CASINO marks. Furthermore, the <trumptajonline.com> and <trumpmarinacasino.com> domain names are confusingly similar to Complainant's marks because they incorporate Complainant's marks in their entirety and merely add the generic terms "online", and "casino". The generic term does not defeat a claim of confusing similarity. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the Complainant combined with a generic word or term); see also Sunkist Growers, Inc. v. S G & Delmonte-Asia.com, D2001-0432 (WIPO May 22, 2001) (finding that the domain names <sunkistgrowers.org>, <sunkistgrowers.net> and <sunkistasia.com> are confusingly similar to complainant’s registered SUNKIST mark and identical to complainant’s common law SUNKIST GROWERS mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or
Legitimate Interests
Respondent has failed to come forward with a Response and therefore it is presumed that Respondent has no rights or legitimate interests in the <trumptajonline.com> and <trumpmarinacasino.com> domain names. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant. See 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”).
There is no evidence on the record, and Respondent has not come forward to establish that it is commonly known by either of the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that Respondent has failed to demonstrate any rights or legitimate interests in the <twilight-zone.net> domain name since Complainant had been using the TWILIGHT ZONE mark since 1959).
Respondent has used the disputed domain name to advertise an adult content website. It has been found that this type of use does not create rights or legitimate interests. See MatchNet plc v. MAC Trading, D2000-0205 (WIPO May 11, 2000) (finding that it is not a bona fide offering of goods or services to use a domain name for commercial gain by attracting Internet users to third party sites offering sexually explicit and pornographic material, where such use is calculated to mislead consumers and tarnish the Complainant’s mark). Furthermore, Respondent is using the disputed domain names to advertise for Complainant's competitors, which does not give rise to rights or legitimate interests in the disputed domains. See The Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that Respondent’s use of the disputed domain names is confusingly similar to Complainant’s mark. Respondent’s use of the domain names to sell competing goods was an illegitimate use and not a bona fide offering of goods).
Moreover, Respondent has linked the disputed domain name to an online casino and an advertising website. It has been found that the use of a confusingly similar domain name as a link to gambling and advertisement websites does not create rights and legitimate interests. See Société des Bains de Mer v. International Lotteries, D2000-1326 (WIPO Jan. 8, 2001) (finding no rights or legitimate interests where Respondent used the <casinomontecarlo.com> and <montecarlocasinos.com> domain names in connection with an online gambling website); see also FAO Schwarz v. Zuccarini, FA 95828 (Nat. Arb. Forum Dec. 1, 2000) (finding no rights or legitimate interests in the domain names <faoscwartz.com>, <foaschwartz.com>, <faoshwartz.com>, and <faoswartz.com> where Respondent was using these domain names to link to an advertising website).
Furthermore, Respondent is intentionally diverting Internet users to its website for its own commercial gain and is therefore not making a legitimate noncommercial, or fair use of the disputed domain pursuant to Policy ¶ 4(c)(iii). See Kosmea Pty Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and
Use in Bad Faith
Respondent is thought to have been on notice of the existence of Complainant's mark at the time Respondent registered the infringing domain names, because of the famous and distinctive nature of Complainant's TRUMP mark. 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 Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).
The <trumptajonline.com> and <trumpmarinacasino.com> domain names are confusingly similar to Complainant's mark and the Internet user will likely believe that there is an affiliation between Respondent and Complainant. Registration of the confusingly similar domain names is evidence of bad faith. See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).
Respondent, by advertising for competitors of Complainant is attracting Internet users to websites that compete with Complainant's business. See Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business). Furthermore, Respondent has used the confusingly similar domain names for commercial gain. This conduct is evidence of bad faith. See State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where the Respondent registered the domain name <bigtex.net> to infringe on the Complainant’s good will and attract Internet users to the Respondent’s website); see also Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the Respondent had engaged in bad faith use and registration by linking the domain name to a website that offers services similar to Complainant’s services, intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s marks).
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three elements required under the ICANN Policy, the Panel
concludes that the requested relief shall be hereby granted.
Accordingly, it is Ordered that the domain names <trumpmarinacasino.com> and
<trumptajonline.com> be transferred from Respondent to Complainant.
James P. Buchele, Panelist
Dated: December 12, 2001
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