Las Vegas Sands Corp. v. Richard Brown
Claim Number: FA0712001117841
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.
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.
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 firstname.lastname@example.org and email@example.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.
Complainant requests that the domain names be transferred from Respondent to 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.
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,
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.
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.
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
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