Wynn Resorts Holdings, LLC v. thiago rodrigues / brasil
Claim Number: FA2112001976620
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Peter H. Ajemian of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is thiago rodrigues / brasil (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wynnbet.site>, registered with GoDaddy.com, LLC.
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 December 9, 2021; the Forum received payment on December 9, 2021.
On December 10, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <wynnbet.site> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 December 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 4, 2022 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@wynnbet.site. Also on December 15, 2021, 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 January 9, 2022 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, Wynn Resorts Holdings, LLC, provides hotel and casino gambling and betting services.
Complainant has rights in the WYNN mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <wynnbet.site> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark, and add the descriptive word “bet” and the “.site” generic top-level domain (“gTLD”), none of which creates a sufficient distinction.
Respondent does not have rights or legitimate interests in the <wynnbet.site> domain name because Respondent is not commonly known by the at-issue domain name and is not authorized to use Complainant’s WYNN mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain name addresses an inactive webpage and previously resolved to a webpage where Respondent attempted to pass itself off as affiliated with Complainant.
Respondent has registered and uses the <wynnbet.site> domain name in bad faith because Respondent registered and uses the domain name to attract internet users for commercial gain. Respondent’s domain name also creates initial interest confusion. In addition, Respondent had constructive and/or actual knowledge of Complainant’s rights in the WYNN mark, which is further evidence of its bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in WYNN.
Respondent is not affiliated with Complainant and is not authorized to use the WYNN mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in WYNN.
Respondent used the domain name to pass itself off as Complainant to offer competing and related services. Respondent currently holds the at-issue domain name passively.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the WYNN mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <wynnbet.site> domain name is composed of Complainant’s entire WYNN trademark followed by the term “bet” and with all followed by the generic top-level domain name “.site”. The differences between Complainant’s trademark and Respondent’s domain name do nothing to materially distinguish the at-issue domain name from Complainant’s trademark. Therefore, the Panel concludes that Respondent’s <wynnbet.site>domain name is confusingly similar to Complainant’s WYNN trademark pursuant to Policy ¶ 4(a)(i). 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 Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
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 (Forum Aug. 18, 2006). Since Respondent failed to respond, 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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Thiago Rodrigues” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <wynnbet.site> domain name. The Panel therefore concludes that Respondent is not commonly known by the <wynnbet.site> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Moreover, Respondent used the confusingly similar domain name to address a website displaying Complainant’s WYNN trademark and logo. The website also advertised gambling and sports betting services which create the appearance of affiliation with or sponsorship by Complainant since Complainant too provides such services. Respondent’s use of the domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website addressed by the domain name featured the complainant’s mark and various photographs related to the complainant’s business); See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”).
Likewise, Respondent’s current passive holding of the at-issue domain name indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First and as mentioned elsewhere herein, Respondent used the confusingly similar <wynnbet.site> domain to pass itself off as Complainant and diverts internet users to Respondent’s own website where it offers competing services. Using the <wynnbet.site> domain name to pass off as a Complainant and divert internet users to Respondent’s competing array of related services shows Respondent’s bad faith disruption of Complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See American Cheerleader Media, LLC. v. ilir shoshi / cheer, FA 1592319 (Forum Jan. 20, 2015) (“The Panel here finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) as … Respondent utilizes a logo and stylized font identical to Complainant’s own, as well as Complainant’s copyrighted images and text in an attempt to pass itself off as Complainant.”); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also, OneWest Bank N.A. v. Matthew Foglia, FA1503001611449 (Forum Apr. 26, 2015) (holding that the respondent’s use of the domain name to direct internet users to a website which competed with the complainant was evidence of bad faith pursuant to Policy ¶ 4(b)(iv)). Further, Respondent’s use of <wynnbet.site> is likely to cause initial interest confusion with the WYNN mark. See Morgan Stanley v. MorganStanleyclub, FA1901001826100 (Forum Feb. 26, 2019) (“Use of a disputed domain name to cause initial interest confusion between a disputed domain name and a Complainant’s mark is also evidence of bad faith.”).
Next, Respondent currently holds the at-issue domain name passively. Respondent’s non-use of the domain name indicates Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Caravan Club v. Mrgsale, FA 95314 (Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that passive holding of a domain name permits an inference of registration and use in bad faith); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith).
Furthermore, Respondent had actual knowledge of Complainant’s rights in the WYNN mark when it registered <wynnbet.site> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s WYNN trademark and from Respondent’s prior use of the domain name to attempt to pass itself off as Complainant and offer competing services as mentioned elsewhere herein. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (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); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION 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 <wynnbet.site> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 10, 2022
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