Wynn Resorts Holdings, LLC v. James Cox
Claim Number: FA0711001110107
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Kelley
Nyquist, of Greenberg Traurig, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wynnencore.com>, registered with Moniker Online Services, 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 November 15, 2007; the National Arbitration Forum received a hard copy of the Complaint on November 19, 2007.
On November 29, 2007, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <wynnencore.com> domain name is registered with Moniker Online Services, Inc. and that the Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 December 6, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 26, 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.
A timely Response was received on December 26, 2007. The Response was deficient under ICANN Rule 5 as it was not received in hard copy. The Panel has nonetheless elected, in the interests of justice, to consider the Response in arriving at its decision.
On December 29, 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.
On January 8, 2008, the parties requested, and the Panel granted, a stay of the proceeding for a one-time period of twenty (20) days. On January 28, 2008, Complainant filed a request to lift the stay of arbitration. The Panel lifted the stay of arbitration on January 29, 2008 and the case proceeded to a decision.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant contends, among other things, that:
together with its affiliates, is the owner and operator of the “Wynn Las Vegas”
resort hotel casino in
Wynn Las Vegas opened for business on April 28, 2005.
On November 8, 2004, Wynn Resorts announced its intended expansion of the Wynn Las Vegas resort hotel casino, entitled “Encore at Wynn Las Vegas.”
The Encore at Wynn Las Vegas project broke ground on April 28, 2006, and will be fully integrated with the neighboring Wynn Las Vegas.
Since the public
announcement of the Wynn Las Vegas name in June 2003, Wynn Resorts has
continuously used the mark WYNN in connection with advertising and promoting
its affiliated properties in the
The WYNN name and marks are among the most recognized and respected names in the gaming industry.
Complainant has spent substantial sums of money to advertise and promote the WYNN mark in print and broadcast media, and on the Internet through the Wynn Resorts and Wynn Las Vegas web sites, accessible throughout the United States and around the world at the <wynnlasvegas.com> and <wynnresorts.com>, among others.
Complainant has made extensive use of the WYNN mark on, among other things, signage, wearing apparel and sales and promotional materials, and has obtained numerous federal registrations for the WYNN mark for various goods and services.
Respondent registered the disputed domain name in April of 2005.
The disputed domain name is confusingly similar to the Wynn mark, and Respondent’s addition of the term “encore” compounds that confusion because the term “encore” identifies the newest expansion of the Wynn Las Vegas resort hotel casino.
Respondent has no rights or legitimate interests in the disputed domain name, because, among other things, Respondent has not used it for a bona fide offering of goods or services and does not appear to have any intention of doing so.
Further, Respondent is not using the disputed domain name for a legitimate non-commercial or fair use; rather, although the domain name has been registered for nearly three years, the Respondent has failed to use the domain name in connection with any legitimate website content.
Respondent registered and is using the disputed domain name in bad faith.
Respondent contends, among other things, that:
Respondent has no desire to participate in any proceeding involving this Complaint.
Respondent has no objection to the transfer of the subject domain name to Complainant “at any time.”
Paragraph 4(a) of the Policy requires that, in the ordinary course, Complainant must prove each of the following in order to obtain from a Panel an order that a domain name be transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
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.
Notwithstanding the foregoing, Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Further, Policy ¶ 3(a) provides for the transfer of a domain name registration upon the written instructions of the parties to a UDRP proceeding without the need for otherwise required findings and conclusions (see Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat. Ar. Forum Jan. 13, 2004); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005)).
Respondent does not contest the material allegations of the Complaint, and the parties have effectively agreed in writing to a transfer of the subject domain name from Respondent to Complainant without the need for further proceedings.
It is therefore Ordered that the <wynnencore.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: February 12, 2008, 2008
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