Wynn Resorts Holdings, LLC v. Zhi Chao Yang
Claim Number: FA2204001991524
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Erin Lewis of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is Zhi Chao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wynbnet.com>, registered with Cloud Yuqu 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 April 7, 2022; the Forum received payment on April 7, 2022. The Complaint was received in both Chinese and English.
On April 10, 2022, Cloud Yuqu LLC confirmed by e-mail to the Forum that the <wynbnet.com> domain name is registered with Cloud Yuqu LLC and that Respondent is the current registrant of the name. Cloud Yuqu LLC has verified that Respondent is bound by the Cloud Yuqu 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 14, 2022, the Forum served the Chinese language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of May 4, 2022 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@wynbnet.com. Also on April 14, 2022, the Chinese and English language 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 13, 2022, 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Notwithstanding that the Registration Agreement is written in Chinese, pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case including Respondent’s failure to respond, the Panel finds that the proceeding should be in English.
A. Complainant
Complainant contends as follows:
Complainant, Wynn Resorts Holdings, LLC, is a hotel company offering luxury casino resort services.
Complainant has rights in the WYNN mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <wynbnet.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire typosquatted mark and added the typosquatted descriptive word “bet” and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <wynbnet.com> domain because Respondent is not commonly known by the at-issue domain name and is not authorized to use Complainant’s WYNN mark. Additionally, Respondent fails to use the at-issue domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain resolves to a pay-per-click webpage.
Respondent has registered and uses the <wynbnet.com> domain name in bad faith because Respondent uses the at-issue domain name to create bad faith attraction for commercial gain through the related/competing pay-per-click links on its resolving webpage. In addition, Respondent engages in typosquatting and had constructive and actual knowledge of Complainant’s rights in the WYNN mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the WYNN trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the WYNN trademark.
Respondent uses the at-issue domain names to address a parked webpage.
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 ownership of a USPTO trademark registration for its WYNN mark establishes Complainant’s rights in such mark for the purposes of Policy ¶ 4 (a)(i). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)).
The at-issue domain name consists of Complainant’s WYNN trademark in a misspelled/mistyped form. The second level of <wynbnet.com> can be characterized as “Wynn bet” with its second “n” and “b” transposed. The domain name concludes with the top level domain name “.com.” The differences between <wynbnet.com> and Complainant’s WYNN trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <wynbnet.com> domain name is confusingly similar to Complainant’s WYNN trademark. See Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”); see also, RetailMeNot, Inc. v. Domain Admin / Private Registrations Aktien Gesellschaft, FA 1625879 (Forum Aug. 6, 2015) (finding confusing similarity while Respondent merely transposed the letters “a” and “t” in the RETAILMENOT mark in crafting the <reatilmenot.com> domain name.).
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 the 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. 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)”).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Zhi Chao Yang” and the record before the Panel contains no evidence tending to suggest that Respondent is commonly known by either the <wynbnet.com> domain name or by WYNN. The Panel therefore concludes that Respondent is not commonly known by the <wynbnet.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent uses the <wynbnet.com> domain name to address a webpage featuring pay-per-click hyperlinks to third-parties some of which refer to similar services as those offered by Complainant. To wit, the webpage features links to websites offering gambling, online betting, sports betting, and other services. Respondent’s use of the <wynbnet.com> domain name in this manner fails to suggest either a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”); see also, CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”).
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).
As discussed below without limitation, bad faith circumstances are present which permit the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent’s use of the at-issue domain name to address a webpage displaying pay-per-click links shows Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv). Notably, such usage is disruptive to Complainant’s business and demonstrates that Respondent is attempting to attract internet users for commercial gain by trading off the Complainant’s trademark. See Vivint, Inc. v. Online Management, FA1403001549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links).
Second, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings, or as here a trademark related phrase, into a trademark and then uses the resulting string to in a domain name. The registrant hopes that internet users will inadvertently type the malformed string when searching for content related to the domain name’s target trademark and/or upon reading the domain name will overlook the misspelling and subsequently believe the domain name is related to, or sponsored by, the target trademark. In the instant case, Respondent removed swapped the “n” and “b” in the phrase “Wynn bet” before incorporating the misspelling into the at-issue domain name. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Moreover, Respondent had actual knowledge of Complainant’s rights in the <wynbnet.com> mark when it registered <wynbnet.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s mark and from Respondent’s typosquatting as discussed above. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wynbnet.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 16, 2022
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