Harrah's License Company, LLC v. 123wwwDomains,
Claim Number: FA0709001072980
Complainant is Harrah's License Company, LLC (“Complainant”), represented by David
J. Stewart, of Alston & Bird, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <world-series-poker.com>, registered with Enom, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 31, 2007; the National Arbitration Forum received a hard copy of the Complaint on September 4, 2007.
On September 4, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <world-series-poker.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 September 10, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 1, 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 to postmaster@world-series-poker.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 9, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
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:
1. Respondent’s <world-series-poker.com> domain name is confusingly similar to Complainant’s WORLD SERIES OF POKER mark.
2. Respondent does not have any rights or legitimate interests in the <world-series-poker.com> domain name.
3. Respondent registered and used the <world-series-poker.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Harrah’s License Company, LLC, is a
wholly-owned subsidiary of Harrah’s Operating Company, Inc. Harrah’s Operating Company, Inc. own or
manages more than forty casinos in three countries. Each year, Harrah’s holds the World Series of
Poker at Harrah’s Rio All-Suite Hotel & Casino in
Complainant registered the WORLD SERIES OF POKER mark with the United States Patent and Trademark Office (“USPTO”) on November 18, 1975 (Reg. No. 1,025,395).
Respondent registered the <world-series-poker.com> domain name on June 21, 2002. The disputed domain name is being used to redirect Internet users to Respondent’s commercial website. At Respondent’s website, Internet users can fill out an alleged registration form for free registration for Complainant’s WORLD SERIES OF POKER event.
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:
(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.
Complainant registered WORLD SERIES OF POKER mark with the USPTO, and thus has established rights to the mark pursuant to Policy ¶ 4(a)(i). See 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.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Respondent’s <world-series-poker.com> domain name is confusingly similar to Complainant’s WORLD SERIES OF POKER mark. The exclusion of the term “of” and the inclusion of hyphens creates a negligible distinction between the Respondent’s mark and the disputed domain name. Further, Respondent’s inclusion of the generic top-level domain “.com” to Complainant’s mark does not sufficiently distinguish the disputed domain name from Complaint’s mark. This difference between the disputed domain name and the Complainant’s mark is insufficient, and therefore, the Panel find that the disputed domain name is confusingly similar to the Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Blue Sky Software Corp. v. Digital Sierra, Inc., D2000-0165 (WIPO Apr. 27, 2000) (holding that the domain name <robohelp.com> is identical to the complainant’s registered ROBOHELP trademark, and that the "addition of .com is not a distinguishing difference"). The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant claims that Respondent has no rights and legitimate interests in the <world-series-poker.com> domain name. Complainant must establish a prima facie case, meeting the initial burden of proof that Respondent lacks rights and legitimate interests in the domain name. After Complainant has established a prima facie case, the burden shifts to the Respondent to show that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Here, Complainant has made a prima facie case that Respondent lacks rights and legitimate interests. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Respondent’s failure to answer creates a presumption that Respondent lacks rights or legitimate interests in the disputed domain name. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name). However, the Panel will examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent is using the <world-series-poker.com>
domain name to attract Internet users to its website, offering an alleged
free entry to Complainant’s WORLD SERIES OF POKER competition. Respondent is attempting to commercially benefit
from Complainant’s WORLD SERIES OF POKER mark.
The Panel finds that such use is not in connection with a bona fide use pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to
Policy ¶ 4(c)(iii). See MSNBC Cable, LLC
v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or
legitimate interests in the famous MSNBC mark where the respondent attempted to
profit using the complainant’s mark by redirecting Internet traffic to its own
website); see also Bank of
Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb.
Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet
users seeking Complainant's website to a website of Respondent and for
Respondent's benefit is not a bona fide offering of goods or services under
Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii).”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent’s use of the <world-series-poker.com> domain
name, which is confusingly similar to Complainant’s WORLD SERIES OF POKER mark,
is likely to cause confusion among Internet users searching for Complainant’s
WORLD SERIES OF POKER event information.
Specifically, Internet users may be confused as to the affiliation, endorsement,
and sponsorship of the Respondent’s website offers. Respondent intentionally attempts to attract
Internet users to its website for commercial gain by
allegedly offering free entry into the event and purporting to be affiliated
with the WORLD SERIES OF POKER event. The
Panel finds that Respondent registered and is using the disputed domain name in
bad faith pursuant to Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v.
Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003)
(finding that the disputed domain name was registered and used in bad faith
pursuant to Policy ¶ 4(b)(iv) through the respondent’s
registration and use of the infringing domain name to intentionally attempt to
attract Internet users to its fraudulent website by using the complainant’s
famous marks and likeness); see
also Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent
is using the domain name at issue in direct competition with Complainant, and
giving the impression of being affiliated with or sponsored by Complainant,
this circumstance qualifies as bad faith registration and use of the domain
name pursuant to Policy ¶ 4(b)(iv).”).
The Panel finds that Complainant
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 <world-series-poker.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 19, 2007
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