WYNN Resorts Holdings, LLC v. hansuan guan
Claim Number: FA2009001913473
Complainant is WYNN Resorts Holdings, LLC (“Complainant”), represented by Peter Ajemian of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is hansuan guan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wynnbet.com>, 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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 23, 2020; the Forum received payment on September 23, 2020.
On September 24, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <wynnbet.com> 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 September 25, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 15, 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@wynnbet.com. Also on September 25, 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 October 21, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 claims rights in the WYNN mark acquired through its portfolio for registered trademarks described below and its continuous use of the mark since at least as early as April 28, 2005 in connection with casino, hotel resort, restaurant, bar, spa and entertainment services.
Complainant submits that the disputed domain name is confusingly similar to its WYNN mark as it incorporates the trademark in its entirety with the addition of the generic term “bet” and the generic top-level domain (“gTLD”) <.com> extension.
Complainant submits that because it offers entertainment, casino, gaming, and gambling-related services under the WYNN marks, the incorporation of the generic term “bet” in the disputed domain name actually elevates its confusing similarity. See WYNN Resorts Holdings, LLC v. Martinez, FA 1607001683318 (Forum Aug. 19, 2016) (finding <wynnnightlife.com> to be confusingly similar to the same WYNN mark at issue in this Complaint).
Moreover, Complainant submits that the addition of a gTLD extension is irrelevant in determining whether a disputed domain name is confusingly similar to a complainant’s trademark. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that top level domain names like “.com” do not affect the determination of whether a domain is identical or confusingly similar to a mark).
Complainant submits that Respondent has no rights or legitimate interests in the disputed domain name alleging that Complainant has uncovered no evidence to suggest that Respondent is commonly known by the text of any component of the disputed domain name but rather, all evidence suggests that Respondent is not commonly known by any specific name.
As all identifying information in the disputed domain name’s WhoIs account has been redacted for privacy purposes. Complainant argues that this Panel should presume that Respondent is not commonly known by the disputed domain name and therefore, has no legitimate interest in its use. See Big Canoe Company, LLC v. Daniel J. Elliot, FA 799382 (Forum Nov. 17, 2006) (finding that the respondent’s use of Complainant’s mark in the respondent’s <bigcanoerealestate.net> domain name is not legitimate because the respondent’s WhoIs information did not indicate that the respondent was commonly known by such domain).
Moreover, Complainant asserts that Respondent has not licensed or authorized to use the WYNN mark.
Furthermore, Complainant asserts that Respondent has failed to link the domain to an active website since it registered the disputed domain name on December 5, 2014 and argues that this evinces a lack of rights or legitimate interests also. See U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Forum Apr. 9, 2007) (“Respondent’s failure to associate content with its disputed domain name evinces a lack of rights and legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
In this regard Complainant refers to a screenshot of the web location to which the disputed domain name resolves which is exhibited in an annex to the Complaint, which shows that the disputed domain name resolves to a message stating that “[t]his site cannot be reached. Wynnbet.com took too long to respond.”
Complainant submits that it follows that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(ii).
Complainant alleges that Respondent’s actions demonstrate that the disputed domain name was registered and is being used in bad faith pursuant to Policy ¶ 4(a)(iii). Complainant argues that when the disputed domain name was registered on December 5, 2014, Complainant had already filed and/or secured registrations for the WYNN marks, which Complainant claims are famous and Complainant submits that Respondent therefore had constructive notice of Complainant’s marks.
Complainant adds that given the high level of consumer recognition that the WYNN mark has achieved in the United States and internationally, Respondent likely had actual notice of the WYNN marks at the time of registration. WYNN Resorts Holdings, LLC v. Martin Mir, FA 1443434 (Forum June 19, 2012) (“[B]y registering domain names that are tied to Complainant’s well-publicized business, Respondent engaged in opportunistic bad faith registration and use of the disputed domain names under Policy ¶ 4(a)(ii).”).
Complainant argues that despite such knowledge, Respondent registered the disputed domain name, which contains the entirety of the WYNN trademark, along with the addition of the generic term “bet” and the gTLD <.com> extension and in so doing, Respondent demonstrated bad faith. See WYNN Resorts Holdings, LLC v. Martinez, FA 1607001683318 (Forum Aug. 19, 2016) (finding that “due to the fame of the [WYNN marks],
Complainant furthermore argues that Respondents continued failure to make use of the disputed domain name is evidence that Respondent registered the domain in bad faith. 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).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant provides casino, hotel resort, restaurant, bar, spa and entertainment services under the WYNN trademark and is the owner of a large portfolio of trademark registrations for the mark held through WYNN Holdings, the earliest of which include
· United States Registered service mark WYNN, registration number 2.9977861, registered the Principal Register on July 26, 2005 for services in international class 41;
· United States Registered service mark WYNN, registration number 2977862, registered on the Principal Register on July 26, 2005 for services in international class 43.
Complainant has an established Internet presence and maintains websites at the following addresses: <www.wynnlasvegas.com> and <www.wynnmacau.com>.
The disputed domain name was registered on December 5, 2014 and does not resolve to an active website.
There is no information available about Respondent except for that provided in the Complaint, the Registrar’s WhoIs and the information provided by the Registrar in response to the Forum’s request for verification of the registration details of the disputed domain name. Respondent’s name was concealed on the published WhoIs by availing of a privacy facility and was disclosed by the Registrar in said response to the Forum in this proceeding.
DISCUSSION
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 has adduced clear and convincing evidence of its rights in the WYNN mark acquired through its portfolio for registered trademarks described above and its use of the mark in connection with casino, hotel resort, restaurant, bar, spa and entertainment services online.
The disputed domain name consists of Complainant’s WYNN Mark in combination with the word “bet” and the gTLD <.com> extension.
Complainant’s registered trademark WYNN is the initial, dominant and only distinctive element of the disputed domain name.
The word “bet” in the disputed domain name adds no distinctive characteristic.
In the circumstances of this case the gTLD extension may be ignored as it would be perceived as a technical necessity for the disputed domain name.
This Panel finds therefore that the disputed domain name is confusingly similar to the WYNN trademark in which Complainant has rights and Complainant has succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name alleging:
· that Complainant has uncovered no evidence to suggest that Respondent is commonly known by the text of any component of the disputed domain name;
· that all identifying information in the disputed domain name’s WhoIs account has been redacted for privacy purposes raising a presumption that Respondent is not commonly known by the disputed domain name;
· that Respondent has not licensed or authorized to use the WYNN mark;
· that Respondent has failed to link the domain to an active website since it registered the disputed domain name on December 5, 2014 which evinces a lack of rights or legitimate interests; and
· that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(ii).
It is well established that if Complainant makes out a prima facie case, the burden of production shifts to Respondent to prove his rights or legitimate interests in the disputed domain name.
Respondent has failed to file any Response to the Complaint or provide any defense to Complainant’s allegations and so has not discharged the burden.
In these circumstances this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
When the disputed domain name was registered on December 5, 2014, Complainant had already secured registrations for its WYNN marks and has asserted in the Complaint and in an uncontested supporting verifying declaration submitted by its assistant secretary that is has continuously used the mark since at least as early as April 28, 2005 in connection with its casino, hotel resort, restaurant, bar, spa and entertainment business.
The disputed domain name incorporates Complainant’s WYNN trademark in its entirety together with the word “bet” and in these circumstances, in the absence of any other explanation, this Panel finds that on the balance of probabilities the registrant of the disputed domain name was aware of Complainant and its business when the disputed domain name was chosen and registered and in fact the disputed domain name was registered in bad faith with Complainant’s mark in mind in order to create an association with Complainant, its mark and goodwill.
This Panel furthermore finds that Respondent’s continued failure to make active use of the disputed domain name in circumstances where the disputed domain name was on the balance of probability registered with Complainant’s mark in mind, in order to create an association with Complainant’s mark; that it incorporated the word “bet” which is a reference to Complainant’s business; that the disputed domain name was registered subsequent to Complainant’s earliest trademark registrations; that there was no response to the Complaint; that Respondent availed of privacy facility has been availed of to conceal his identity on the published WhoIs; and that it is impossible to conceive what good faith use might be made of the disputed domain name in the hands of Respondent proves on the balance of probabilities that the disputed domain name is passive holding and use in bad faith for the purposes of the test in Policy ¶ 4(a)(iii).
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has therefore succeeded in the third element of the test in Policy ¶ 4(a)(iii) and is entitled to the remedy requested in the Complaint.
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.com> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman SC
Panelist
Dated: October 21, 2020
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