Wynn Resorts Holdings, LLC v. Henry Martinez / HRM3
Claim Number: FA1607001683318
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Peter H. Ajemian of Brownstein Hyatt Farber Schreck, Nevada, United States. Respondent is Henry Martinez / HRM3 (“Respondent”), Nevada, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wynnnightlife.com>, registered with 1&1 Internet SE.
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.
Hon. Karl V. Fink (Ret). as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 11, 2016; the Forum received payment on July 11, 2016.
On July 14, 2016, 1&1 Internet SE confirmed by e-mail to the Forum that the <wynnnightlife.com> domain name is registered with 1&1 Internet SE and that Respondent is the current registrant of the name. 1&1 Internet SE has verified that Respondent is bound by the 1&1 Internet SE 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 July 18, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 8, 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@wynnnightlife.com. Also on July 18, 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 August 10, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret). 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 <wynnnightlife.com> be transferred from Respondent to Complainant.
A. Complainant
Complainant uses its WYNN mark in connection with casino, hotel resort, restaurant, bar, spa, and entertainment services, among other goods and services. Complainant has registered the WYNN mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,038,216, registered Jan. 3, 2006), which demonstrates Complainant’s rights in its mark. The <wynnnightlife.com> domain is confusingly similar to Complainant’s mark as it wholly incorporates the mark and merely adds the generic term “nightlife” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the domain. Respondent is not commonly known by the terms of the domain, and is not authorized or licensed by Complainant to use the WYNN mark. Further, Respondent is not using the domain in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent has failed to make any active use of the domain.
Respondent registered and is using the domain in bad faith. First, Respondent has failed to make any active use of the domain. Second, based on Complainant’s trademark registration and the fame of its WYNN mark, it is clear that Respondent registered the domain with at least constructive knowledge of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <wynnnightlife.com> domain name.
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.”).
Complainant uses its WYNN mark in connection with casino, hotel resort, restaurant, bar, spa, and entertainment services, among other goods and services. Complainant has registered the WYNN mark with the USPTO (e.g., Reg. No. 3,038,216, registered Jan. 3, 2006), which Complainant argues demonstrates its rights in the mark. The Panel finds that trademark registrations with the USPTO suffice to demonstrate a complainant’s rights in its mark for the purposes of Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)). Accordingly, the Panel finds that Complainant has demonstrated its rights in its mark pursuant to Policy ¶ 4(a)(i).
Complainant argues that the <wynnnightlife.com> domain is confusingly similar to Complainant’s mark as it wholly incorporates the mark and merely adds the generic term “nightlife” and the generic top-level domain (“gTLD”) “.com.” Panels have decided that neither the addition of a generic term, nor the affixation of the “.com” gTLD, serves to adequately distinguish a respondent’s domain from a complainant’s mark. See Am. Express Co. v. MustNeed.com, FA 257901 (Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). For these reasons, the Panel finds that Respondent’s domain is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Complainant has proved this element.
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), and 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 (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 argues that Respondent has no rights or legitimate interests in the domain. Complainant claims that Respondent is not commonly known by the terms of the domain, and is not authorized or licensed by Complainant to use the WYNN mark. The Panel may note that the WHOIS information merely lists “Henry Martinez / HRM3” as registrant and that Respondent has failed to provide any evidence for the Panel’s consideration. As such, the Panel finds no basis in the available record to find Respondent commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Complainant asserts that Respondent is not using the domain in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Complainant argues that Respondent has failed to make any active use of the domain. Panels have held that a respondent lacks rights and legitimate interests where it fails to make any active use of a domain. See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question). Thus, the Panel finds that Respondent is not using the domain in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Complainant has proved this element.
While Complainant does not make any contentions that fall within the articulated provisions of Policy ¶ 4(b), the Panel notes that these provisions are meant to be merely illustrative of bad faith, and that Respondent’s bad faith may be demonstrated by ancillary allegations considered under the totality of the circumstances. See CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith.).
Complainant argues that Respondent has failed to make any active use of the domain. Panels have held that a respondent’s failure to make any active use of a domain is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy). Thus, the Panel concludes that Respondent has engaged in bad faith per Policy ¶ 4(a)(iii).
Complainant contends that based on Complainant’s trademark registration and the fame of its WYNN mark, it is clear that Respondent registered the domain with at least constructive knowledge of Complainant’s mark. While panels have concluded that constructive notice is not sufficient to support a bad faith finding, the Panel finds that, due to the fame of Complainant’s mark, Respondent had actual knowledge of the mark and Complainant’s rights. Thus, the Panel holds that Respondent registered the domain in bad faith under Policy ¶ 4(a)(iii). See Meredith Corp. v. CityHome, Inc., D2000-0223 (WIPO May 18, 2000) (finding that the respondent’s constructive notice of the complainant’s registered mark was insufficient to support a finding of bad faith registration); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
Complainant has proved this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wynnnightlife.com> domain name be TRANSFERRED from Respondent to Complainant .
Hon. Karl V. Fink (Ret). Panelist
Dated: August 19, 2016
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