Las Vegas Sands Corp. v. you wanxian
Claim Number: FA0710001089025
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Susan Okin Goldsmith, 744 Broad Street, Suite 1200, Newark, NJ 07102. Respondent is you wanxian (“Respondent”), xianggang 999077, HK.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <weinisimacao.com>, registered with Xin Net Technology Corporation.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On October 11, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 31, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <weinisimacao.com> domain name is confusingly similar to Complainant’s VENETIAN mark.
2. Respondent does not have any rights or legitimate interests in the <weinisimacao.com> domain name.
3. Respondent registered and used the <weinisimacao.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Las Vegas Sands Corp. uses the VENETIAN mark
for casino, hotel and resort services, and for related goods. Complainant’s resort, the Venetian Macao
celebrated its grand opening on
Respondent registered the <weinisimacao.com>
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 the VENETIAN mark with the USPTO, the
trademark authority in
Complainant contends that Respondent’s
<weinisimacao.com> domain name is confusingly
similar to Complainant’s mark under Policy ¶ 4(a)(i). Currently, domain name registrants and
Internet users do not have the capability to use Chinese characters in domain
names. As a result, Internet users
searching for domain names registered by or affiliated with Chinese companies
must first translate the Chinese characters into a phoenetic English
equivalent. Complainant contends that
Respondent’s <weinisimacao.com> domain name is the phoentic
English equivalent of Complainant’s VENETIAN mark translated from Chinese
characters. Complainant contends that
the translation of the Chinese characters for the Venetian Resport in
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant claims that Respondent has no rights or
legitimate interests in <weinisimacao.com> domain name. Complainant has the
initial burden of showing that Respondent lacks rights and legitimate interests
in the disputed domain name. Once Complainant makes a prima
facie case supporting its assertion that Respondent does not have rights or
legitimate interests, the burden shifts to Respondent to show that it does have
rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has
demonstrated that Respondent lacks rights and legitimate interests, and thus
has made a prima facie case pursuant
to Policy ¶ 4(a)(ii).
Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO
Because Respondent failed to answer the Complaint, the Panel presumes that Respondent lacks all rights and legitimate interests in the disputed domain name. See 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); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). Nevertheless, the Panel will examine all the evidence in the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant asserts that Respondent is not, and has never
been, commonly known by the disputed domain name. The WHOIS information indicates that
Respondent is “you wanxian”, and therefore, does not indicate that Respondent
is commonly known by the <weinisimacao.com> domain name.
See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb.
In addition, Respondent is using of the <weinisimacao.com> domain name to operate a website that is identical in appearance to Complainant’s own legitimate website. Complainant contends that Respondent is seeking to collect personal information of Complainant’s customers looking for Complainant’s services online or seeking employment with Complainant. The Panel finds this use amounts to a phishing scheme under the UDRP and does not constitute a use in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)); 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 Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <weinisimacao.com> domain name to attract Internet users to its website in connection with a phishing scheme in which Respondent seeks to collect personal information of Complainant’s customers or potential customers as well as its employees. The Panel finds that Respondent is attempting to commercially benefit from this likelihood of confusion between Complainant’s mark and the disputed domain name and the identical resulting websites. The Panel finds Respondent’s use to be evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
Moreover, the operation of a phishing scheme is in and of itself evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that the respondent registered and used the domain name in bad faith because it redirected Internet users to a website that imitated the complainant’s website and was used to fraudulently acquire personal information from the complainant’s potential associates).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <weinisimacao.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 19, 2007
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