Wynn Resorts Holdings, LLC v. Vistreon
Claim Number: FA0710001093839
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Kelley
L. Nyquist, of Greenberg Traurig, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wynn-casino.com>, registered with Godaddy.com, Inc.
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 17, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 6, 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 <wynn-casino.com> domain name is confusingly similar to Complainant’s WYNN RESORTS mark.
2. Respondent does not have any rights or legitimate interests in the <wynn-casino.com> domain name.
3. Respondent registered and used the <wynn-casino.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Wynn Resorts Holdings, LLC, is the sole
member of Wynn Las Vegas, LLC, the owner and operator of the “Wynn Las Vegas”
resort hotel casino. Since at least the
selection and public announcement of the Wynn Las Vegas name in June 2003, Wynn
Resorts has continuously used the marks WYNN RESORTS, WYNN DD DESIGN AND
DEVELOPMENT, WYNN LAS VEGAS and WYNN MACAU (the “WYNN Marks”) in connection
with advertising and promoting its affiliated properties in the United States
and around the world. Complainant owns
several trademark registrations with the United States Patent and Trademark
Office (“USPTO”) for the WYNN family of marks including WYNN RESORTS (Reg.
Respondent registered the <wynn-casino.com>
domain name on
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 has established rights in the WYNN RESORTS mark,
which date back to the filing of trademark applications with the United States
Patent and Trademark Office (“USPTO”).
Complainant owns several trademark registrations with the USPTO. The Panel finds that where Complainant has
submitted evidence of a valid trademark registration, Policy ¶ 4(a)(i) has been satisfied.
Martin Corp. v. Hoffman, FA 874152
(Nat. Arb. Forum
domain name is confusingly similar to Complainant’s mark. Respondent’s domain name contains
Complainant’s entire WYNN mark, removes the term “Resorts” and adds a hyphen,
the generic term “casino” and the generic top-level domain (“gTLD”)
“.com.” The Panel finds that such
changes fail to distinguish Respondent’s domain name from Complainant’s mark in
any meaningful way for purposes of Policy ¶ 4(a)(i). See Health Devices Corp. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
states that Respondent lacks rights to or legitimate interests in the <wynn-casino.com> domain name.
Where Complainant makes a prima facie case under Policy ¶ 4(a)(ii), the burden shifts to Respondent to set forth concrete
evidence that it does possess rights to or legitimate interests in the disputed
domain name. The Panel finds that Complainant has established a prima facie case in the matter at hand. See Compagnie Generale des Matieres
Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO
contends that the disputed domain name, <wynn-casino.com>,
currently resolves to a website that contains no content. Without
evidence of demonstrable preparations to use the disputed domain name, the
Panel finds that Respondent’s use is not a bona fide offering of goods
or services pursuant to Policy ¶ 4(c)(i) or a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). Pharmacia & Upjohn AB v. Romero,
D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests
where the respondent failed to submit a response to the complaint and had made
no use of the domain name in question); see also U.S. News & World Report,
Inc. v. Zhongqi, FA 917070 (Nat. Arb.
Respondent is neither commonly known by the <wynn-casino.com> domain name nor authorized to register domain names featuring Complainant’s WYNN family of marks in any way. Absent evidence to the contrary, the Panel finds that Respondent has not established rights to or legitimate interests in the domain name in accordance with Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
alleges that Respondent registered and used the disputed domain name in bad
faith. The disputed domain name does not currently resolve to an active
website. Respondent presented no evidence of preparations to use the
disputed domain name. For these reasons, the Panel finds that Respondent
registered and used the disputed domain name in bad faith pursuant to Policy ¶
4(a)(iii). See Clerical Med. Inv. Group Ltd.
v. Clericalmedical.com, D2000-1228 (WIPO
The Panel finds that Complainant has 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 <wynn-casino.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 26, 2007
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