DECISION

 

Wynn Resorts Holdings, LLC v. Equitas Global

Claim Number: FA2403002086400

PARTIES

Complainant is Wynn Resorts Holdings, LLC ("Complainant"), represented by Peter H. Ajemian of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is Equitas Global ("Respondent"), United Kingdom.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wynncruelty.com>, registered with NameCheap, Inc.

 

PANEL

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.

 

Jeffrey M. Samuels, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on March 1, 2024; Forum received payment on March 1, 2024.

 

On March 1, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <wynncruelty.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 March 6, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 26, 2024, 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@wynncruelty.com. Also, on March 6, 2024, 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.

 

A timely Response was received and determined to be complete on March 25, 2024.

 

On March 25, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Jeffrey M. Samuels as Panelist.

 

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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

 

Complainant Wynn Resorts Holdings LLC (Wynn Holdings) is a wholly owned subsidiary of Wynn Resorts, Limited (together referred to herein as "Wynn"), the owner and operator of the luxury casino resorts Wynn Las Vegas and Encore in Las Vegas, Nevada, and Wynn Macau, in Macau, China. Since at least as early as April 28, 2005, Wynn has continuously used the WYNN trademark in connection with casino, hotel resort, restaurant, bar, spa, and entertainment services, among other goods and services. Complainant owns many U.S. Trademark Registrations for its WYNN mark¹ and has spent substantial sums of money to advertise, promote, and protect the WYNN mark in print, broadcast, and internet media, including through the websites www.wynnlasvegas.com and www.wynnmacau.com.

 

Complainant asserts that the disputed domain name, <wynncruelty.com>, is confusingly similar to its marks. It points out that the disputed domain name incorporates the entire WYNN trademark, as well as the generic term "cruelty" and the generic top-level domain ".com." 

 

Complainant argues that Respondent has no legitimate rights or legitimate interests in the disputed domain name. Complainant first points out that the disputed domain name was registered on February 9, 2024, and alleges that the domain name resolves to a website that falsely states that Complainant "continues to serve guests eggs from filthy, cruel battery cage egg farms" at Wynn and Encore Las Vegas, as well as Encore Boston Harbor. Complainant asserts that "[s]uch accusations contain false and disparaging statements about Complainant's business that are designed to tarnish Complainant's well-known hospitality brand around the world. Spreading falsehoods are not the type of conduct protected under the Policy, nor is such conduct protected by general notion of free speech. As such, use of the Infringing Domain Name in this manner is not in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use under the Policy." 

 

Complainant maintains that Respondent's actions demonstrate that the disputed domain name was registered and is being used in bad faith. Complainant first indicates that, given the high level of consumer recognition of the WYNN marks, Respondent "likely had actual notice" of the marks at the time of registration of the disputed domain name in February 2024. "Here, after registering the Infringing Domain Name with knowledge of Wynn's trademark rights, Respondent has used the Infringing Domain Name in the utmost bad faith by linking it to a false and disparaging `gripe site'."  Complainant further contends that Respondent has reached out to Wynn with threatening statements, attempting to strongarm Wynn into conforming with Respondent's idealistic views, stating that, if Wynn does so, Respondent will take down its website.

 

"The false and disparaging nature of Respondent's statements on a website linked to the Infringing Domain Name underscores Respondent's bad faith intent in registering and using the subject domain. Respondent relies on deceit in an attempt to coerce Complainant into adopting Respondent's own idealistic views, despite the fact that Complainant is not actually engaged in the conduct Respondent claims is so egregious."

 

B. Respondent

Respondent Equitas is a charitable group whose mission is to prevent discriminatory practices that cause food safety risks to consumers and cruelty to animals in international markets. It notes that battery caged egg production has been banned as criminal in over 30 countries, as well as in many states in the U.S., and asserts that caged eggs pose serious health risks to consumers. For these reasons, Respondent works to encourage large food companies to commit to ending the purchase of caged eggs in their supply chain and, instead, to use only cage-free eggs and egg ingredients. According to Respondent, Complainant, while making good progress towards this goal in regards to shell eggs directly sourced by the company for its U.S. properties, has failed to set a public timeline for shifting to using only cage-free eggs and egg ingredients at its Asia properties and has failed to set a public timeline for making all egg ingredients used in products sold or sourced for its U.S. customers cage-free. Respondent contends that the disputed domain name is being used in connection with a website to publicly criticize Complainant for its failure to properly address this food safety and animal cruelty issue.

 

Respondent concedes that Complainant has established that the disputed domain name is identical or confusingly similar to the WYNN mark and that Complainant has rights in such mark.

 

With respect to the issue of whether Respondent has rights or legitimate interests in the disputed domain name, Respondent maintains that it is making fair use in a domain that was registered for and is used for legitimate public criticism. Addressing many of the factors set forth in Section 2.5.2 of the WIPO Jurisprudential Overview, 3.0 as relevant in assessing the issue of fair use, Respondent argues that (1) the disputed domain name is being used by a charitable group for purposes in line with its mission; (2) the criticism covered on the disputed website is truthful and well-founded; (3) it is immediately clear to visitors to the site that the site is not operated by Complainant but, rather, is a website meant to highlight criticism of Complainant and to encourage boycott of Complainant's business; (4) Respondent has never received emails or correspondence from visitors to the disputed website who were intending to reach Complainant; (5) there is a clear connection between the WYNN mark in the disputed domain name and the content of the site in issue; and (6) the registration and use of the disputed domain name is consistent with a pattern of both online and offline bona fide public criticism of Complainant by Respondent.

 

Respondent contends, consistent with Section 2.6.3 of the WIPO Jurisprudential Overview, 3.0, that previous UDRP panels have found that a respondent has a legitimate interest in using a trademark as part of a criticism site if such use is prima facie "noncommercial, genuinely fair and not misleading or false."

 

Finally, with respect to the issue of "bad faith" registration and use, Respondent simply notes that "[l]egitimate public criticism is the opposite of acting in bad faith." In response to Complainant's argument that the disputed website has false statements about Complainant and, therefore, is being operated in bad faith, Respondent asserts that "Complainant has not pointed to a single sentence or statement on Respondent's website that is false."  According to Respondent, Complainant's sole assertion of falsehood is based on the premise that because the shell eggs directly sourced by Complainant for its U.S. properties are cage-free, Respondent is not entitled to state that Complainant has caged eggs in its supply chain. "This viewpoint is simply non-logical and untrue."

 

FINDINGS

The Panel finds that: (1) the disputed domain name is confusingly similar to the WYNN marks and that Complainant has rights in such marks; (2) Respondent has rights or legitimate interests in the disputed domain name; and (3) the disputed domain name was not registered and is not being used in bad faith.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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.

 

Identical and/or Confusingly Similar

The Panel finds that the disputed domain name is confusingly similar to the WYNN marks and that Complainant has established rights in such marks. As noted by the panel in Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662, "a domain name is `identical or confusingly similar' to a trademark for purposes of the Policy when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name."  In this case, the disputed domain name includes Complainant's mark in its entirety.

 

Rights or Legitimate Interests

The key issue in this case is whether Respondent's criticism site supports a finding that it has established rights or legitimate interests under the Policy. Under the facts of this case, that determination turns on whether the content of the <wynncruelty.com> website is noncommercial, genuinely fair, and not misleading or false.

 

The current version of the disputed website², as set forth on page 3 of Annex 5 to the Amended Complaint, states, in part, as follows:

 

"Wynn resorts continues to serve guests eggs sourced from filthy and cruel battery caged egg farms.

 

"Do you stay or game at Wynn Resorts? If so, you may want to think again. Wynn Resorts continue to serve guests at some of its properties eggs from filthy cruel battery cage egg farms with higher food safety food safety risks.

 

"It is time for Wynn Resorts to stop putting customers' safety at risk and stop supporting this severe animal cruelty. It's time for Wynn Resorts to catch up with its peers and commit to transitioning to use only cage-free eggs globally." 

 

Respondent explains that eggs used in a company's supply chain include both shell eggs and processed eggs (liquid eggs, powdered eggs, etc.), and eggs sourced directly by the company, as well as eggs sourced by third parties for use in products sold and served at a company's properties.

 

Prior to launching the disputed website, Respondent contacted Complainant to inform it of Respondent's plans to launch a public campaign regarding Complainant's failure to enact a global cage-free egg policy and would hold off doing so if Complainant enacted such a policy.

 

Respondent indicates that it was directly informed by guests visiting Complainant's Asia properties that many of the shell eggs being sourced for those properties are from battery cage egg producers. Further, upon its due diligence, Respondent could not find any public commitment and timeline to shift to sourcing only cage-free eggs at Complainant's Asia properties, whether in regard to shell eggs or processed eggs and whether in regard to eggs sourced directly by Complainant or sourced by third parties.

 

With respect to Complainant's U.S. properties, Respondent asserts, upon its exercise of due diligence, that Complainant does not appear to have a public commitment to only allow cage-free eggs and egg ingredients to be sold and served. While Respondent acknowledges Complainant's commitment to make sure all of its directly-sourced shell eggs are cage-free, "directly-sourced shell eggs represent only a portion of the eggs used in products sold and served to guests at Complainant's properties in the U.S". Respondent therefore reasonably believes it is true that Complainant has no public commitment to allow only cage-free eggs and egg ingredients in products sold or served to guests at Complainant's properties, and that eggs from caged hens are being used in some of the products sold and served to guests at those properties.

 

Bearing in mind that Complainant bears the ultimate burden of proof on this, as on all elements of the Policy, the Panel finds that the evidence and argument supports a determination that Respondent has rights or legitimate interests in the disputed domain name. More specifically, the Panel finds that Respondent's criticism site is noncommercial, genuinely fair, and not misleading or false.

 

As set forth above, the disputed site asserts, in part, that Complainant has failed to "commit to transitioning to use only cage-free eggs globally."  While Complainant, in a February 16, 2024, letter to Respondent, committed to make sure all of its directly sourced shell eggs are cage-free, Respondent notes, and Complainant does not dispute, that Complainant has not publicly committed to only allow cage-free eggs and egg ingredients in products sold or served to guests at its U.S. and Asian properties.

 

While Complainant accuses Respondent of including false and misleading statements regarding the serving of eggs "from filthy, cruel battery cage egg farms" at Wynn and Encore Las Vegas, as well as Encore Boston Harbor, the Panel notes that reference to these sites was removed from the website prior to the filing of the Complaint, and that the current version of the website speaks only to the use of "eggs from filthy cruel battery cage egg farms with higher food safety food safety risks"³ at "some" of Complainant's properties. As indicated above, Respondent was informed that eggs served or used at Complainant's Asian properties were from battery cage egg producers.

 

The Panel further finds that the content at the disputed website is noncommercial. Respondent does not solicit contributions, advertise for the sale any product, or otherwise seek commercial advantage.

 

A review of the factors set forth in Section 2.5.2 of the WIPO Jurisprudential Overview, 3.0 supports a finding of rights or legitimate interests. The disputed website clearly states it is run by a charitable group, there is no evidence of misdirected correspondence, there is a clear connection between use of Complainant's WYNN mark in the disputed domain name and the content of the site, and the evidence indicates that the disputed website is consistent with other actions undertaken by Respondent criticizing Complainant.

 

Registration and Use in Bad Faith

In view of the determination on the issue of rights or legitimate interests, the Panel concludes that the disputed domain name was not registered and is not being used in bad faith. Rather, the case file establishes that the disputed domain name was registered and is being used in connection with a legitimate, noncommercial criticism site.

 

Moreover, the Panel deems it relevant on the issue of "bad faith" that Respondent exercised due diligence before launching its <wynncruelty.com> site. Respondent indicates that it searched all public websites, social media accounts, sustainability reports and similar public documents before registering and using the disputed domain name. In so doing, Respondent reasonably believed the truth of the assertions set forth in the challenged website. Under such circumstances, in the Panel's opinion, it cannot be said that Respondent acted with the requisite bad faith to support transfer of the disputed domain name.

 

Also relevant in establishing the absence of bad faith, in the view of the Panel, is the fact that Respondent edited the initial version of the disputed website in order, as stated in Respondent's email of February 18, 2024, to "refine[] the language to be more clear … to ensure correct understanding on the part of other readers." 

 

The above actions are inconsistent with a finding of the requisite "bad faith."

 

DECISION

Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <wynncruelty.com> domain name REMAIN WITH Respondent.

 

 

 

Jeffrey M. Samuels, Panelist

Dated: April 8, 2024