Las Vegas Sands Corp. v. James
Claim Number: FA0712001117833
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Susan
Okin Goldsmith, 744 Broad Street, Suite 1200, Newark, NJ 07102. Respondent is James (“Respondent”), Victoria House 45, Gibraltar,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <venetianpokerroom.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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 5, 2007; the National Arbitration Forum received a hard copy of the Complaint on December 6, 2007.
On December 11, 2007, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <venetianpokerroom.com> domain name is registered with Moniker Online Services, Inc. and that 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 17, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 7, 2008 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@venetianpokerroom.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 15, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 <venetianpokerroom.com> domain name is confusingly similar to Complainant’s VENETIAN mark.
2. Respondent does not have any rights or legitimate interests in the <venetianpokerroom.com> domain name.
3. Respondent registered and used the <venetianpokerroom.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Las Vegas Sands Corporation (“LVSC”), holds several trademark registrations with the United
States Patent and Trademark Office (“USPTO”) for the VENETIAN mark (i.e. Reg.
No. 2,295,362 issued November 30, 1999).
In addition, Complainant holds trademark registrations with the European
Union’s Office for Harmonization in the International Market since 2000, in
Respondent registered the <venetianpokerroom.com> domain name on August 13, 2007. Respondent’s disputed domain name resolves to
a website that contains commercial links to third-party websites, namely sites
to
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 VENETIAN mark through registration of the mark with the USPTO and other governmental authorities. 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.”).
Complainant contends that Respondent’s <venetianpokerroom.com> domain name is confusingly similar to Complainant’s VENETIAN mark. Respondent’s domain name contains Complainant’s mark, adds generic terms associated with Complainant’s business and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that a domain name which contains Complainant’s mark and adds generic terms with an obvious relationship to Complainant’s business is confusingly similar for purposes of Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity). In addition, the Panel finds that the addition of the gTLD “.com” is irrelevant in finding a domain name to be identical or confusingly similar to the disputed domain name. See Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <venetianpokerroom.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds in this case that Complainant has established a prima facie case. See 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”); see also 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).”).
Due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). However, the Panel chooses to examine the evidence on record against the applicable Policy ¶ 4(c) elements before making a final determination.
Complainant contends that Respondent is neither commonly known by the <venetianpokerroom.com> domain name nor licensed to register domain names using the VENETIAN mark. The Panel finds that without evidence suggesting otherwise, Respondent has not established rights or legitimate interests in the <venetianpokerroom.com> domain name under the Policy ¶ 4(c)(ii). See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also CMGI, Inc. v. Reyes, D2000-0572 (WIPO Aug. 8, 2000) (finding that the respondent’s failure to produce requested documentation supports a finding for the complainant).
Complainant contends that Respondent is using the <venetianpokerroom.com> domain name
in order to attract Internet users to the disputed website containing various
links to third-party websites related in nature to the business which
Complainant operates. The Panel assumes
that such a practice is for the purpose of generating “pay-per-click” revenue
from Internet traffic that visits the webpage to which the disputed domain name
resolves. The Panel finds that this type
of practice is neither a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) nor
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See
Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb.
Forum June 24, 2002) (holding that the respondent’s use of the disputed domain
name to redirect Internet users to commercial websites, unrelated to the
complainant and presumably with the purpose of earning a commission or
pay-per-click referral fee did not evidence rights or legitimate interests in
the domain name); see also
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant asserts that Respondent is using the <venetianpokerroom.com> domain name
in order to intentionally attract Internet users to its website by creating a likelihood
of confusion with Complainant’s VENETIAN mark and offering links to third-party
websites presumably for commercial gain.
The Panel finds that such commercial gain in connection with confusing
Internet users into using Respondent’s website is in bad faith pursuant to the
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 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.”).
In addition, Respondent’s use of the <venetianpokerroom.com> domain name to advertise competing third-party websites is further evidence of bad faith. The Panel finds that a registered domain name used primarily to disrupt the business of a competitor demonstrates bad faith pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); 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).
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 <venetianpokerroom.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: January 28, 2008
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum