Pinnacle Entertainment, Inc. v. Transure Enterprise Ltd c/o Host Master
Claim Number: FA1004001319905
Complainant is Pinnacle
Entertainment, Inc. (“Complainant”), represented by Erin E. Lewis, of Brownstein Hyatt Farber Schreck,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwbelterracasino.com>, registered with Above.com Pty Ltd.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 16, 2010.
On April 21, 2010, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <wwwbelterracasino.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 April 23, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 13, 2010 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@wwwbelterracasino.com by e-mail. Also on April 23, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 21, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <wwwbelterracasino.com> domain name is confusingly similar to Complainant’s BELTERRA mark.
2. Respondent does not have any rights or legitimate interests in the <wwwbelterracasino.com> domain name.
3. Respondent registered and used the <wwwbelterracasino.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Pinnacle Entertainment, Inc.,
owns and operates casino gaming resorts in the
Respondent registered the <wwwbelterracasino.com> domain name on October 14, 2009. The disputed domain name resolves to a list of third-party casino hyperlinks that compete with Complainant’s casino business.
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 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.”).
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.
Past panels have held that a trademark registration is
sufficient for a complainant to establish rights in a mark.
Complainant alleges that Respondent’s <wwwbelterracasino.com>
domain name is confusingly similar to Complainant’s BELTERRA mark. The disputed domain name contains
Complainant’s entire mark and removes the period separating the prefix “www”
and the rest of the disputed domain name.
Respondent further altered Complainant’s mark in the disputed domain
name by adding the descriptive term “casino,” which describes Complainant’s
casino business, and the generic top-level domain (“gTLD”) “.com.” The Panel finds these alterations, the
addition of the “www” prefix, descriptive term, and gTLD,
all fail to adequately distinguish the disputed domain name from Complainant’s
mark. See Bank of Am. Corp. v. InterMos, FA
95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s
domain name <wwwbankofamerica.com> is confusingly similar to the
complainant’s registered trademark BANK OF
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the <wwwbelterracasino.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Complainant alleges that Respondent is not commonly known by the <wwwbelterracasino.com> domain name. Complainant argues that the WHOIS information, which identifies the domain name registrant as “Transure Enterprise LTD c/o Host Master,” is not similar to the disputed domain name. Complainant asserts that Complainant has not licensed or authorized Respondent to use Complainant’s BELTERRA mark. Respondent has not provided any evidence to contradict these assertions or to prove that Respondent is commonly known by the disputed domain name. Based on the evidence in the record, the Panel finds that Respondent is not commonly known by the <wwwbelterracasino.com> domain name pursuant to Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Respondent’s <wwwbelterracasino.com> domain name resolves to a website containing third-party hyperlinks relating to casinos that compete with Complainant’s casinos. Complainant alleges that Respondent receives click-through fees from the competing hyperlinks. The Panel determines Respondent’s use of the confusingly similar <wwwbelterracasino.com> domain name for this purpose does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent uses the <wwwbelterracasino.com> domain name to provide a list of third-party hyperlinks relating to casinos that compete with Complainant’s casinos. Internet users interested in Complainant’s casinos may, due to Respondent’s use of the confusingly similar disputed domain name, choose a competing casino instead of Complainant’s. The Panel finds that this loss of business disrupts Complainant’s casino business, which constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
Complainant claims that the aforementioned hyperlinks are pay-per-click links from which Respondent receives click-through fees. Respondent is attempting to profit from Internet users accessing the website based on the mistaken belief that the website is affiliated with or sponsored by Complainant. The Panel finds Respondent’s use of the <wwwbelterracasino.com> domain name for this purpose is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)).
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwbelterracasino.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: May 28, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum