Harrah's License Company, LLC v. TEAM Europe Ltd c/o Dave Brannan
Claim Number: FA0802001143727
Complainant is Harrah's License Company, LLC (“Complainant”), represented by Jessica
E. Jacob, of Alston & Bird, LLP, Georgia,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <worldseriesofpokerinthepub.com> and <worldseriesofpokerinthepub.net>, registered with Tucows Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On February 29, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 20, 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@worldseriesofpokerinthepub.com and postmaster@worldseriesofpokerinthepub.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <worldseriesofpokerinthepub.com> and <worldseriesofpokerinthepub.net> domain names are confusingly similar to Complainant’s WORLD SERIES OF POKER mark.
2. Respondent does not have any rights or legitimate interests in the <worldseriesofpokerinthepub.com> and <worldseriesofpokerinthepub.net> domain names.
3. Respondent registered and used the <worldseriesofpokerinthepub.com> and <worldseriesofpokerinthepub.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Harrah’s License Company, LLC, owns or manages more than forty casinos in three
countries. Each year Complainant holds
the World Series of Poker in
Respondent
registered the <worldseriesofpokerinthepub.com>
and <worldseriesofpokerinthepub.net>
domain names on
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 registered the WORLD SERIES OF POKER mark with the USPTO, and therefore has established rights to the mark under Policy ¶ 4(a)(i). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
The <worldseriesofpokerinthepub.com> and <worldseriesofpokerinthepub.net> domain names are confusingly similar to Complainant’s WORLD SERIES OF POKER mark because the disputed domain names incorporate the entire mark and include the phrase “in the pub.” This phrase is insufficient for distinguishing the disputed domain name from the registered mark because “in the pub” could describe the type of venues where Complainant’s events are held. Moreover, the addition of the generic top-level domains (“gTLDs”) “.com” and “.net” do not distinguish the disputed domain names from Complainant’s mark because all registered domain names are required to have a top-level domain. Therefore, the Panel concludes that the disputed domain names are confusingly similar to Complainant’s WORLD SERIES OF POKER mark. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also 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).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has the initial burden of demonstrating that Respondent lacks all rights and legitimate interests in the disputed domain names. Complainant has asserted that Respondent has neither rights nor legitimate interests in the <worldseriesofpokerinthepub.com> and <worldseriesofpokerinthepub.net> domain names, and therefore made a prima facie case under Policy ¶ (a)(ii). In Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000), the panel held that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the disputed domain name, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue.” Thus, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent has failed to respond to the Complaint. The panel in Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) found that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the disputed domain names. Therefore, the Panel presumes that Respondent has no rights or legitimate interests in the disputed domain names. Nevertheless, the Panel will examine all evidence in the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c). See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise).
Complainant asserts that it has never granted Respondent a license
or consent to use the WORLD SERIES OF POKER mark. Although Respondent has attempted to
establish a business relationship with Complainant, Respondent has no
connection or affiliation with Complainant.
Moreover, the WHOIS information does not suggest that Respondent is
commonly known by the disputed domain names.
In Gallup, Inc.
v. Amish Country Store, FA 96209 (Nat. Arb. Forum
The disputed domain names resolve to gambling-related websites. The Panel concludes that such competing commercial use is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See G.D. Searle & Co. v. Pelham, FA 117911 (Nat. Arb. Forum Sept. 19, 2002) (finding that because the respondent is using the infringing domain name to sell prescription drugs, the panel could infer that the respondent is using the complainant’s mark to attract Internet users to its website for commercial benefit); see also eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The websites that resolve from the <worldseriesofpokerinthepub.com> and <worldseriesofpokerinthepub.net>
domain names contain gambling-related content.
Respondent is benefiting from the goodwill associated with Complainant’s
WORLD SERIES OF POKER mark, and is capable of creating confusion as to
Complainant’s source, sponsorship, affiliation, or endorsement of the websites
that resolve from the disputed domain names.
The Panel concludes that such use is evidence of registration and use in
bad faith under Policy ¶ 4(b)(iv). See 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.”); see
also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933
(Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and
used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the
respondent was using the confusingly similar domain name to attract Internet
users to its commercial website).
Furthermore, because
Respondent is using the disputed domain names to host websites with content
related to Complainant’s business, the Panel finds evidence of registration and
use in bad faith under Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
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 <worldseriesofpokerinthepub.com> and <worldseriesofpokerinthepub.net> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 9, 2008
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