Wynn Resorts Holdings, LLC v. Jene See / Je Sports Intelligence Trading
Claim Number: FA2010001918690
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Peter Ajemian of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is Jene See / Je Sports Intelligence Trading (“Respondent”), Malaysia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wynnbetgroup.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 28, 2020; the Forum received payment on October 28, 2020.
On October 29, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <wynnbetgroup.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 November 3, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 23, 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@wynnbetgroup.com. Also on November 3, 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 November 25, 2020, 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 casino and entertainment services.
Complainant has rights in the WYNN mark based on registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <wynnbetgroup.com> domain name is confusingly similar to Complainant’s WYNN mark since it includes the entire mark and simply adds the generic terms “bet” and “group,” along with the “.com” generic top level domain (“gTLD”) to form the disputed domain name.
Respondent does not have rights or legitimate interests in the <wynnbetgroup.com> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not licensed or authorized Respondent to use the WYNN mark. Additionally, Respondent does not use the domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to pass off as Complainant and offer competing services.
Respondent registered and uses the <wynnbetgroup.com> domain name in bad faith. Respondent uses the domain to pass off as Complainant and diverts consumers to its own website where it offers competing services. Additionally, Respondent has constructive and actual knowledge of Complainant’s rights in the WYNN mark based on the registration and fame of the mark.
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 uses at-issue domain name to pass itself off as Complainant, capitalize on the goodwill in Complainant’s trademark, and offer services competing with Complainant.
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 <wynnbetgroup.com> domain name is composed of Complainant’s entire WYNN trademark with the terms “bet,” which is suggestive of Complainant’s business, and “group” appended thereto, all followed by the generic top-level domain name “.com.” The differences between Complainant’s trademark and Respondent’s domain name materially do nothing to distinguish the at-issue domain name from Complainant’s trademark. Therefore, the Panel concludes that Respondent’s <wynnbetgroup.com> 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 ““Jene See / Je Sports Intelligence Trading” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <wynnbetgroup.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <wynnbetgroup.com> 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 uses the confusingly similar domain name to address a website displaying Complainant’s WYNN trademark and an image of its founder. Thereby, Respondent attempts to pass itself off as Complainant and to promote services competing with services offered by Complainant. 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 also Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”).
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 uses the confusingly similar <wynnbetgroup.com> domain to pass itself off as Complainant and diverts internet users to its own website where it offers competing services. Using the <wynnbetgroup.com> domain name to pass off as a Complainant and divert internet users to its offering of competing goods or 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)).
Furthermore, Respondent had actual knowledge of Complainant’s rights in the WYNN mark when it registered <wynnbetgroup.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s WYNN trademark, the inclusion of a term suggesting Complainant’s business in the domain name, and by Respondent’s use of the domain name to offer services that compete with Complainant. 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 <wynnbetgroup.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 25, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page