Las Vegas Sands Corp. v. Manlidy / GNN
Claim Number: FA2304002039194
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Michael J. McCue of Lewis Roca Rothgerber Christie LLP, Nevada, USA. Respondent is Manlidy / GNN (“Respondent”), Singapore.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <baliren66888.com>, registered with OwnRegistrar, Inc..
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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on April 6, 2023; Forum received payment on April 6, 2023.
On April 7, 2023, OwnRegistrar, Inc. confirmed by e-mail to Forum that the <baliren66888.com> domain name is registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the name. OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, 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 April 14, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 4, 2023 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@baliren66888.com. Also on April 14, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On May 11, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. as Panelist.
On May 13, 2023, the Panel issued a Procedural Order for Complainant to rectify the deficiencies of the proof of Complainant’s trademark rights within 5 calendar days from the date of the notification of the Procedural Order. Respondent was given the opportunity to file an additional submission within 5 calendar days from the date of receipt of Complainant’s additional submission. On May 15, 2023, Complainant submitted an additional submission with exhibits per the Panel’s Procedural Order. No submission in response to Complainant’s additional submission from Respondent was filed by the due date of May 20, 2023.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
i) Complainant, Las Vegas Sands Corp., operates a chain of resort hotels and casinos, including one named The Parisian located in Macao. Complainant has rights in the THE PARISIAN MACAO mark and the mark 澳 门 巴 黎 人 (translating to MACAO PARISIAN) through trademark registrations in Macao (e.g., THE PARISIAN MACAO Reg. No. N/74807, which was registered on January 14, 2014; 澳 门 巴 黎 人 Reg. No. N/67886, which was registered on October 30, 2013). The disputed domain name is confusingly similar to the THE PARISIAN marks as it contains the phonetic transliteration of the Chinese character mark, numbers, and a generic top-level domain (“gTLD”).
ii) Respondent lacks rights or legitimate interests in the disputed domain name since Respondent was not authorized to use Complainant’s THE PARISIAN marks and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent trades off the goodwill associated with Complainant’s marks to divert Internet users to Respondent’s site that passes itself off as Complainant.
iii) Respondent registered and uses the disputed domain name in bad faith by competing with Complainant. Respondent likely profits from pay-per-click hyperlinks. Respondent also had actual knowledge of Complainant’s rights in the THE PARISIAN marks.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The disputed domain name was registered on February 17, 2023.
2. Complainant has established rights in the THE PARISIAN MACAO mark and the mark 澳 门 巴 黎 人 (translating to MACAO PARISIAN) through trademark registrations in Macao (e.g., THE PARISIAN MACAO Reg. No. N/74807, which was registered on January 14, 2014; 澳 门 巴 黎 人 Reg. No. N/67886, which was registered on October 30, 2013).
3. Complainant provides evidence that the disputed domain name resolves to what appears to be a login screen (in Chinese) which prominently features the identical THE PARISIAN marks and logo, including the same color scheme.
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”).
Complainant claims rights in the THE PARISIAN MACAO mark and the mark 澳 门 巴 黎 人 (translating to MACAO PARISIAN) through trademark registrations in Macao (e.g., THE PARISIAN MACAO Reg. No. N/74807, which was registered on January 14, 2014; 澳 门 巴 黎 人 Reg. No. N/67886, which was registered on October 30, 2013). As Complainant has provided evidence of trademark registrations for the THE PARISIAN marks by way of additional submission per the Panel's Procedural Order, it finds Complainant has rights in the THE PARISIAN marks under Policy ¶ 4(a)(i).
Complainant argues the disputed domain name <baliren66888.com> is confusingly similar to the THE PARISIAN marks. More specifically, Complainant argues “baliren” is the Pinyin phonetic transliteration of the 巴 黎 人 portion of 澳 门 巴 黎 人, which means PARISIAN. (Pinyin is a Romanization system for Standard Mandarin Chinese.) Respondent also merely adds the numbers “66888” and “.com” gTLD. Phonetic transliterations have been found to be confusingly similar to foreign character marks. See McDonald's Corporation v. Fundacion Private Whois, Case No. D2012-1435 (WIPO Sept. 20, 2012) (finding that a disputed domain name comprised of a Pinyin phonetic transliteration of Roman script confusingly similar to the complainant’s trademark); see also See Dow Corning Corporation v. zhongshan daokangning youjigui co.ltd, FA 1309001519356 (Forum Nov. 4, 2013) (“It is well-established that ‘domain names comprising phonetic transliterations of Chinese language trademarks are confusingly similar to such trademarks under the Policy.”). Moreover, adding numbers does not adequately distinguish a disputed domain name from a mark. See Bloomberg Finance L.P. v. network admin, FA 1622138 (Forum July 11, 2015) (“The addition, deletion, and switching of . . . numbers in domain names do not remove Respondent’s domain names from the realm of confusing similarity in relation to Complainant’s BLOOMBERG mark pursuant to Policy ¶ 4(a)(i).”). Similarly, gTLDs are irrelevant for purposes of Policy ¶ 4(a)(i) analysis. See Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”). Given the disputed domain name incorporates the phonetic transliteration of the THE PARISIAN marks and only adds numbers and a gTLD, the Panel finds the disputed domain name is confusingly similar to Complainant’s THE PARISIAN marks per Policy ¶ 4(a)(i).
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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues Respondent has no rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and Complainant has never licensed rights to or authorized Respondent to use the THE PARISIAN marks. In the absence of a response, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). In addition, where there is no evidence to indicate a complainant has authorized the use of a mark, it may act as support that a respondent is not commonly known by the disputed domain name and thus lacks any rights or legitimate interest in the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”); see also Navistar International Corporation v. N Rahmany, FA 1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for the disputed domain name lists the registrant as “Manlidy” with the organization “GNN.” Further, there is no evidence to suggest Respondent was authorized, licensed rights to, or otherwise permitted to use the THE PARISIAN marks. Therefore, the Panel finds Respondent is not commonly known by, and lacks rights or legitimate interests in, the disputed domain name per Policy ¶ 4(c)(ii).
Complainant also argues Respondent seeks to trade off goodwill associated with the THE PARISIAN marks to confuse and divert Internet traffic to a site that falsely associates itself with Complainant. Use of a domain name to mislead and divert customers away from a complainant does not constitute either a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). In addition, panels have declined to find a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name when a respondent diverts traffic to a site that passes off as or imitates a complainant. See Dream Horse Classifieds v. Mosley, FA 381256 (Forum Feb. 8, 2005) (finding the respondent’s attempt to pass itself off as the complainant by implementing a color scheme identical to the complainant’s was evidence that respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii)); see also 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).”). Complainant provides evidence that the disputed domain name resolves to what appears to be a login screen (in Chinese) which prominently features the identical THE PARISIAN marks and logo, including the same color scheme. Respondent appears to be trading off goodwill associated with the THE PARISIAN marks to divert Internet users to a site passing off Respondent as Complainant, and thus the Panel finds Respondent lacks a bona fide offering of goods or services and legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent registered and uses the disputed domain name in bad faith by competing with Complainant. Respondent likely profits from pay-per-click hyperlinks. Under Policy ¶ 4(b)(iv), passing off as a complainant is evidence of bad faith registration and use. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant provides evidence that the disputed domain name resolves to what appears to be a login screen (in Chinese) which prominently features the identical THE PARISIAN marks and logo, including the same color scheme. The Panel notes that Respondent appears to be trading off goodwill associated with the THE PARISIAN marks to divert Internet users to a site passing off Respondent as Complainant. Thus, the Panel finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant further argues Respondent registered the disputed domain name with bad faith actual knowledge of Complainant’s rights in the THE PARISIAN marks given the distinctive and famous nature of the marks. Under Policy ¶ 4(a)(iii), actual knowledge is generally sufficient in demonstrating bad faith, and may be established through incorporation of a well-known/registered mark into a domain name. See United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (finding Respondent had actual knowledge of Complainant’s rights in the USPS mark “given the widespread use of Complainant’s mark and the fact that Respondent registered four separate domain names all of which include Complainant’s USPS mark in its entirety”).
The Panel infers, due to the notoriety of Complainant’s mark; the “baliren” in the disputed domain name <baliren66888.com> being the Pinyin phonetic transliteration of the portion 巴 黎 人 of Complainant’s mark 澳 门 巴 黎 人 (translating to MACAO PARISIAN); and the manner of use of the disputed domain name that Respondent had knowledge of Complainant’s rights in Complainant’s THE PARISIAN and its Chinese character marks at the time of registering the disputed domain name, and finds that Respondent registered the disputed domain name in bad faith under 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 <baliren66888.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: May 22, 2023
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