Las Vegas Sands Corp. v.
Richard Brown
Claim Number: FA0712001117841
PARTIES
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Susan
Okin Goldsmith, 744 Broad Street, Suite 1200, Newark, NJ 07102. Respondent is Richard Brown (“Respondent”), represented by Kevin
C. O'Connell, of Freund, Freeze & Arnold, 1800 One
Dayton Centre, One Dayton Centre,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lasvegasands.com> and <c0taistrip.com>,
registered with Schlund+Partner AG.
PANEL
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.
David E. Sorkin as Panelist.
PROCEDURAL HISTORY
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 6, 2007, Schlund+Partner AG confirmed by e-mail to the
National Arbitration Forum that the <lasvegasands.com> and <c0taistrip.com>
domain names are registered with Schlund+Partner
AG and that the Respondent is the current registrant of the names. Schlund+Partner
AG has verified that Respondent is bound by the Schlund+Partner AG 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 13, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of January 2, 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@lasvegasands.com and postmaster@c0taistrip.com by e-mail.
A timely Response was received and determined to be complete on January 2, 2008.
On January 10, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed David E. Sorkin as Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant owns and uses the SANDS and COTAI STRIP trademarks for its
casino, hotel, and resort services and for related goods and services. Complainant states that it is a publicly
traded company with a market capitalization of approximately US $39 billion.
Complainant owns the former site of the famous Sands resort in
Complainant’s SANDS mark was first used at least as early as 1952, and
was registered in the
Complainant alleges that the disputed domain name <lasvegasands.com> is confusingly similar to its corporate
name, Las Vegas Sands, and the address of its official corporate website, <lasvegassands.com>,
differing only in the omission of the “s” in “sands”; and to its SANDS
trademark, in that it wholly incorporates the mark. Complainant further alleges that the disputed
domain name <c0taistrip.com>
is confusingly similar to its COTAI STRIP mark, in that it wholly incorporates
the mark, differing merely in the substitution of the numeral “0” for the
letter “o.”
Complainant states that it has not licensed or otherwise authorized
Respondent to use its marks; that Respondent is not and has never been commonly
known by either disputed domain name; and that Respondent therefore lacks
rights or legitimate interests in the domain names.
Finally, Complainant contends that Respondent registered and has used
the disputed domain names in bad faith.
Complainant notes that the domain names were both registered on March
11, 2006, long after both relevant trademarks had been registered; and that
Respondent selected the domain names intending to capitalize on the fame and
value of Complainant’s corporate name and trademarks.
Complainant asserts that the website operated by Respondent at the
domain name <lasvegasands.com>
contains inaccurate information about Complainant, presented in first person,
and that Respondent’s <c0taistrip.com>
website similarly and falsely implies an affiliation or sponsorship
relationship between the parties.
Complainant further asserts that Respondent is using the domain names to
provide links to third-party sites unrelated to Complainant, and suggests it is
likely that Respondent is profiting from these links. Complainant also alleges that the website at <lasvegasands.com> previously
linked to a page indicating that the domain name was available for sale.
B. Respondent
Respondent contends that Complainant has failed to support its
allegations relating to both disputed domain names with evidence. Respondent further claims that his use of the
domain names for “informational” and noncommercial websites is a fair use. Respondent also states that, notwithstanding
Complainant’s claim to trademark rights in COTAI STRIP, that term is used
generically by the press as well as by competitors of Complainant to refer to
an area of land in Cotai,
FINDINGS
With respect to each of the disputed domain
names, the Panel finds that the domain name is confusingly similar to a mark in
which Complainant has rights, that Respondent lacks rights or legitimate
interests in respect of the domain name, and that Respondent registered and has
used the domain name in bad faith.
DISCUSSION
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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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 contends that the disputed domain
names <lasvegasands.com> and <c0taistrip.com> are confusingly
similar to its registered trademarks SANDS and COTAI STRIP. Respondent does not contest the confusing
similarity component of this claim, but asks the Panel to disregard certain of
Complainant’s trademark claims on the grounds that Complainant did not provide
the Panel with English translations of the registration documents. Paragraph 11(b) of the Rules authorizes (but
does not require) a Panel to request translations of documents submitted in
languages other than the language of the proceeding. In fact, many of the registration documents
submitted by Complainant are in English, and in any event, the submitted
evidence adequately informs the Panel of Complainant’s trademark rights. The Panel concludes that both of the disputed
domain names are confusingly similar to marks in which Complainant has rights.
Complainant has made a prima facie showing that Respondent lacks rights or legitimate
interests in respect of the disputed domain names, and the burden therefore
shifts to Respondent to rebut this showing with evidence of his rights or
legitimate interests. See, e.g., Am. Online, Inc. v. Thricovil,
FA 638077 (Nat. Arb. Forum Mar. 22, 2006).
Under Paragraph 4(c)(iii) of the Policy, a
Respondent that is “making a legitimate noncommercial or fair use of the domain
name, without intent for commercial gain to misleadingly divert consumers or to
tarnish the trademark or service mark at issue,” shall be found to have rights
or legitimate interests arising from such use for purposes of Paragraph
4(a)(ii). Respondent appears to rest his
argument on this provision. However,
Respondent has failed to come forward with concrete evidence of such legitimate
use, merely making an unsubstantiated claim that he is using the domain names
“to provide[] information” regarding Complainant and the Cotai Strip
development. Respondent claims that
COTAI STRIP is also used by others in a geographically descriptive sense rather
than as a trademark, but even if the Panel accepts that claim as true, it does
not follow that Respondent’s own use of the term necessarily constitutes a
legitimate fair use. The Panel concludes
that Complainant has met its burden of proving that Complainant lacks rights or
legitimate interests in respect of the disputed domain names.
Complainant’s assertions of bad faith relate
primarily to Paragraph 4(b)(iv) of the Policy. Under that provision, a Panel may find bad
faith registration and use based upon a Respondent’s use of a domain name to
attract Internet users for commercial gain “by creating a likelihood of
confusion with the complainant’s mark as to the source, sponsorship,
affiliation, or endorsement of your web site or location or of a product or
service on your web site or location.”
In addition, under Paragraph 4(b)(i), bad faith
may be found based upon evidence that a Respondent registered a domain name
primarily for the purpose of selling it at a profit to the owner of the
corresponding trademark or a competitor thereof.
The Panel has reviewed the printouts of
Respondent’s websites as submitted by Complainant, as well as the current
versions of those websites. The website
at <lasvegasands.com> does
indeed refer to Complainant in the first person (and formerly included, at the
top of the page, a statement offering the domain name for sale), and neither
website contains substantial informational content. At best the websites appear to be merely
perfunctory placeholder pages, although their actual purpose may well be to
attract Internet users and drive pay-per-click traffic on what appear to be
advertising links. Under the
circumstances it seems to the Panel more likely than not that Respondent’s
registration and use of the disputed domain names fall within one or both of
Paragraphs (4)(b)(i) and 4(b)(iv) of the Policy. Accordingly, the Panel finds that Respondent
has registered and is using the disputed domain names in bad faith.
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lasvegasands.com> and <c0taistrip.com>
domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 24, 2008
Click Here to return
to the main Domain Decisions Page.
Click
Here to return to our Home Page
National
Arbitration Forum