Las Vegas Sands Corp. v. yuxia Feng
Claim Number: FA2004001891291
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Michael J. McCue, Nevada, USA. Respondent is yuxia Feng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <venetiangallery.com>, registered with DropCatch.com 725 LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 7, 2020; the Forum received payment on April 7, 2020.
On April 8, 2020, DropCatch.com 725 LLC confirmed by e-mail to the Forum that the <venetiangallery.com> domain name is registered with DropCatch.com 725 LLC and that Respondent is the current registrant of the name. DropCatch.com 725 LLC has verified that Respondent is bound by the DropCatch.com 725 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 April 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 2020 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@venetiangallery.com. Also on April 21, 2020, 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 May 17, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <venetiangallery.com> domain name is confusingly similar to Complainant’s VENETIAN mark.
2. Respondent does not have any rights or legitimate interests in the <venetiangallery.com> domain name.
3. Respondent registered and uses the <venetiangallery.com> domain name in bad faith.
B. Respondent
1. Respondent failed to file a Response in this proceeding.
Complainant, Las Vegas Sands Corp., owns and operates resort casinos. Complainant holds a registration for the VENETIAN mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,326,994, registered March 7, 2000).
Respondent registered the <venetiangallery.com> domain name on January 19, 2020, and uses it to pass off as Complainant and redirect users to its own website.
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 Panel finds that Complainant has rights in the VENETIAN mark for purposes of Policy ¶ 4(a)(i) through its registration of the mark with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <venetiangallery.com> domain name incorporates the VENETIAN mark in its entirety and adds the descriptive term “gallery” along with the “.com” gTLD. The addition of a generic or descriptive term and a gTLD is not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Accordingly, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 that Respondent does not have rights or legitimate interests in the <venetiangallery.com> domain name, as Respondent is not commonly known by the disputed domain name. Complainant has not authorized Respondent to use the VENETIAN mark. The WHOIS information for the disputed domain name shows that the registrant’s name is “YUXIA FENG.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). 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); see also Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant claims that Respondent fails to use the <venetiangallery.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain name to divert Internet users and imply an affiliation with Complainant. Attempting to pass of as or imply an affiliation with a complainant for financial gain is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. 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).”) Complainant provides screenshots showing that Respondent uses the VENETIAN mark on the website at <venetiangallery.com> and gives the impression of a connection with Complainant. The Panel finds that this use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <venetiangallery.com> domain name in bad faith to offer competing hyperlinks for financial gain. A respondent’s use of a disputed domain name to host competing links for financial gain is evidence of bad faith. See Clark Equipment Company v. Namase Patel / Mumbai Domains, FA1406001566288 (Forum July 30, 2014) (“The Panel observes that the Respondent’s disputed domain name leads to a website that features links to products that directly compete with Complainant’s products. The Panel determines that Respondent is attempting to mislead consumers as to Complainant’s affiliation with the disputed domain name, and Respondent likely profits from the resulting confusion. Therefore, the Panel finds evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”). Complainant demonstrates that Respondent uses the disputed domain name to host an online gambling site that competes with Complainant’s business and generates revenue. The Panel finds that this is bad faith under Policy ¶ 4(b)(iv).
Complainant also contends that Respondent registered the <venetiangallery.com> domain name with knowledge of Complainant’s rights in the VENETIAN mark, based upon Respondent’s use of the mark to directly compete with Complainant. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the mark and thus registered the name in bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”).
The Panel finds that Complainant has satisfied 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 <venetiangallery.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 18, 2020
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