Harrah's License Company, LLC v. sysadmin admin c/o balata.com ltd
Claim Number: FA0711001107042
Complainant is Harrah's License Company, LLC (“Complainant”), represented by Jessica
E. Jacob, of Alston & Bird, LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <myharrahs.com>, registered with Communigal Communications Ltd.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically November 8, 2007; the National Arbitration Forum received a hard copy of the Complaint November 8, 2007.
On November 11, 2007, Communigal Communications Ltd confirmed by e-mail to the National Arbitration Forum that the <myharrahs.com> domain name is registered with Communigal Communications Ltd and that Respondent is the current registrant of the name. Communigal Communications Ltd has verified that Respondent is bound by the Communigal Communications Ltd registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On November 15, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 3, 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@myharrahs.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 11, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <myharrahs.com>, is confusingly similar to Complainant’s HARRAH’S mark.
2. Respondent has no rights to or legitimate interests in the <myharrahs.com> domain name.
3. Respondent registered and used the <myharrahs.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Harrah’s is a wholly owned subsidiary of Harrah’s Operating Company (“HOC”). Through licensed subsidiaries, HOC owns or manages more than forty casinos on four continents. HOC has used the HARRAH’S mark to identify casino, night club, theater and other entertainment services. HOC registered the HARRAH’S mark with the United States Patent and Trademark Office (“USPTO”) on May 10, 1983 (Reg. No. 1237716).
Respondent registered the domain name <myharrahs.com> and was using it as the address for a portal
site containing links to a variety of goods and services, including a prominent
link entitled “
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 established rights in the HARRAH’S mark pursuant
to Policy ¶ 4(a)(i) through registration of the mark
with USPTO. 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.”).
The disputed domain name that Respondent registered, <myharrahs.com>, is confusingly similar to Complainant’s HARRAH’S mark pursuant to Policy ¶ 4(a)(i) because Respondent’s domain name incorporates the mark with the generic word “my.” See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii),
Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests. See VeriSign
Inc. v. VeneSign
Respondent failed to submit a response to the Complaint. Therefore, the Panel presumes that Respondent has no rights or legitimate interests in the dispute domain name. However, this Panel nonetheless examines the record in light of the factors listed under Policy ¶ 4(c). See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“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).”).
Nowhere in Respondent’s WHOIS information nor
elsewhere in the record does it indicate that Respondent is or ever was
commonly known by the disputed domain name.
Moreover, Complainant has not granted, nor has Respondent sought
permission to use the HARRAH’S mark in any way.
As a result, the Panel finds that Respondent is not commonly known by
the <myharrahs.com> domain
name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in
Respondent’s WHOIS information implies that Respondent is ‘commonly known by’
the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii)
does not apply); see also 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).
The <myharrahs.com>
domain name resolves to a website containing links and services offered by both
Complainant’s parent company and various third-parties. Many of the third-parties operate in direct competition
with Complainant. The Panel finds that
this is not a bona fide offering of
goods or services pursuant to Policy ¶ 4(c)(i) and it
is not a legitimate noncommercial or fair use pursuant to Policy ¶
4(c)(iii).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Complainant also alleges that Respondent acted in bad faith
in registering and using the disputed domain name. Respondent offered to sell the <myharrahs.com> domain name to
Complainant for $950. This willingness
to dispose of the disputed domain name establishes Respondent’s bad faith
registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the
disputed domain name registration for sale establishes that the domain name was
registered in bad faith under Policy ¶ 4(b)(i).”); see also Am. Online,
Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar.
16, 2000) (finding bad faith where the respondent offered domain names for
sale).
Additionally, the disputed domain name resolves to a website
featuring various links and services that are in direct competition with the
goods and services offered under Complainant’s mark. The panel finds this attempt to disrupt
Complainant’s business to be additional evidence of Respondent’s bad faith registration
and use pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶¶
4(b)(iii) [and] (iv).”); see also S. Exposure v.
S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the
respondent acted in bad faith by attracting Internet users to a website that
competes with the complainant’s business).
Finally, Respondent is presumed to commercially benefit from
its <myharrahs.com> domain
name through ‘click-through’ fees. The
Panel finds this to be further evidence of Respondent’s 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 Kmart
v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the
respondent profits from its diversionary use of the complainant's mark when the
domain name resolves to commercial websites and the respondent fails to contest
the complaint, it may be concluded that the respondent is using the domain name
in bad faith 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 <myharrahs.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: January 3, 2008.
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