Las Vegas Sands Corp. v.
Claim Number: FA0708001066743
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Susan Okin Goldsmith, 744 Broad Street, Suite 1200, Newark, NJ 07102. Respondent is Marina Bay Sands Marina Bay Sands (“Respondent”), #07-31, Block 428, Serangoon Central, Serangoon Central Spore 730333 Singapore.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <marinabayssands.com>, registered with Godaddy.com, Inc.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 21, 2007; the National Arbitration Forum received a hard copy of the Complaint on August 22, 2007.
On August 21, 2007, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <marinabayssands.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 24, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 13, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and by e-mail to firstname.lastname@example.org.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 21, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
Complainant owns and operates
world renowned resorts and casinos, including the famous Sands Resort in
Complainant’s resorts and casinos have been host to numerous television shows and movies including the original “Ocean’s Eleven” movie.
In addition to its
Complainant owns several registrations for the MARINA BAY SANDS trademark issued by the Singapore Registrar of Trademarks (including Reg. No. T06/05016J and Reg. No. T06/05017I, both issued March 17, 2006).
Respondent is not licensed or otherwise authorized to use Complainant’s mark in a domain name.
Respondent, which claims
Respondent’s disputed domain name resolves to a website featuring links to various financial websites.
Respondent’s <marinabayssands.com> domain name is confusingly similar to Complainant’s MARINA BAY SANDS mark.
Respondent does not have any rights or legitimate interests in the domain name <marinabayssands.com>.
Respondent registered and used the <marinabayssands.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant asserts rights in the MARINA BAY SANDS mark through its registration with the Singapore Registrar of Trademarks. This suffices for purposes of Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004): “Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.” See also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003): “Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”
Complainant contends that Respondent’s <marinabayssands.com> domain name is confusingly similar to Complainant’s MARINA BAY SANDS mark. Respondent’s domain name contains Complainant’s mark in its entirety, and merely adds the generic top-level domain (“gTLD”) “.com” and a superfluous “s” after “bay.” The addition of a gTLD is irrelevant to the determination of whether a mark is confusingly similar. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002):
[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
For its part, the additional “s” does not sufficiently alter the mark to avoid a finding of confusing similarity. AT&T Corp. v. Zuccarini, D2002-440 (WIPO Aug. 28, 2002).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights or legitimate interests in the <marinabayssands.com> domain name. In instances such as this, where Complainant has made out a prima facie case under Policy ¶ 4(a)(ii), the burden shifts to Respondent to set forth concrete evidence that it does possess rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where a complainant has asserted that a respondent has no rights or legitimate interests with respect to a domain name, it is incumbent on that respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Complainant contends that Respondent is using the <marinabayssands.com> domain name to resolve to a website that contains links to financial websites. Respondent does not deny this allegation, and we may presume that Respondent receives click-through fees for each visit to these referred websites. Such a use of the disputed domain name is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Ali Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting a respondent’s contention of rights or legitimate interests in the <bravoclub.com> domain name where that respondent is merely using the domain name to operate a website containing links to competing commercial websites, which is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that a respondent’s use of a disputed domain name to redirect Internet users to commercial websites unrelated to a complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in a domain name).
Complainant also alleges, and Respondent does not deny, that Respondent is not licensed or otherwise authorized to use Complainant’s mark in a domain name. Moreover, Respondent has submitted no evidence that it is either commonly known by the disputed domain name or authorized to register domain names featuring Complainant’s mark. In the absence of such evidence, the Panel finds that Respondent has not established rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum December 7, 2006) (finding that a respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name where that respondent was not authorized to register domain names featuring a complainant’s mark and failed to submit evidence that it is commonly known by the domain name). See also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
On the record before us, there is no dispute that Respondent is using the domain name <marinabayssands.com> for the purpose of collecting click-through fees for each misdirected Internet user attracted to related websites. Moreover, we are persuaded that Internet users searching for Complainant’s legitimate website will likely be confused by Respondent’s domain name as to Complainant’s possible sponsorship of or affiliation with those websites. We conclude that Respondent is attempting to capitalize on such confusion by collecting referral fees for each Internet user thus attracted. Such use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003): “Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’” See also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where a respondent directed Internet users seeking a complainant’s site to its own website for commercial gain).
In addition, it appears that Respondent registered the <marinabayssands.com> domain name with at least constructive knowledge of Complainant’s rights in the MARINA BAY SANDS trademark by virtue of Complainant’s prior registration of that mark with the Singapore Registrar of Trademarks. Registration of a confusingly similar domain name despite such constructive knowledge is, without more, evidence of bad faith registration and use of the domain name pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <marinabayssands.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 5, 2007
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