Wynn Resorts Holdings LLC v. M Soares
Claim Number: FA0803001155978
Complainant is Wynn Resorts Holdings LLC (“Complainant”), represented by Jennifer
D. Arkowitz, of Townsend and Townsend and Crew LLP,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wynncasinos.info>, <wynncasinos.biz> and <wynncasinos.tv>, registered with Godaddy.com, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On March 12, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 1, 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, email@example.com and firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <wynncasinos.info>, <wynncasinos.biz> and <wynncasinos.tv> domain names are confusingly similar to Complainant’s WYNN mark.
2. Respondent does not have any rights or legitimate interests in the <wynncasinos.info>, <wynncasinos.biz> and <wynncasinos.tv> domain names.
3. Respondent registered and used the <wynncasinos.info>, <wynncasinos.biz> and <wynncasinos.tv> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Wynn Resorts Holdings LLC, is the sole member
of Wynn Las Vegas, LLC, which owns the Wynn Las Vegas resort hotel casino. Complainant began using the “Wynn Las Vegas”
name in June 2003, when it announced its plans for the Wynn Las Vegas Casino,
which formally opened on
Respondent registered the <wynncasinos.info>
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.
Though Complainant asserts that it has used the WYNN marks
in connection with its Wynn Las Vegas casino operations since 2003, Complainant
failed to submit any evidence within its submission of any registered trademark. However, Complainant need not demonstrate
registration of its WYNN mark in order to retain rights in the mark pursuant to
Policy ¶ 4(a)(i). Complainant can
overcome its evidentiary deficiency by demonstrating its common law rights in
the WYNN mark. See British Broad. Corp. v.
Renteria, D2000-0050 (WIPO
Complainant has asserted its use of the WYNN mark since 2003
through the use of promotional and operational materials for its casino and
hotel operations. Furthermore,
Complainant has owned and operated the <wynncasinos.com> domain name,
which suggests that Complainant is commonly known by the WYNN mark, since
Respondent’s <wynncasinos.info>, <wynncasinos.biz> and <wynncasinos.tv> domain names embody Complainant’s WYNN mark while adding the generic word “casinos.” For the purposes of Policy ¶ 4(a)(i), the addition of a generic word such as “casinos” fails to yield a distinct disputed domain name apart from Complainant’s mark. This is particularly true when the generic word reflects Complainant’s operations. Respondent’s inclusion of the word “casinos” represents the prototypical scenario wherein the generic word completely depicts Complainant’s operations. The only difference among the disputed domain names are the top-level domains themselves, which is irrelevant under Policy ¶ 4(a)(i). Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s WYNN mark pursuant to Policy ¶ 4(a)(i). See World Wrestling Fed'n Entm't, Inc. v. Rapuano, DTV2001-0010 (WIPO May 23, 2001) (“The addition of the country code top level domain (ccTLD) designation <.tv> does not serve to distinguish [the disputed domain] names from the complainant’s marks since ‘.tv’ is a common Internet address identifier that is not specifically associated with Respondent.”); see also Brambles Indus. Ltd. v. Geelong Car Co. Pty. Ltd., D2000-1153 (WIPO Oct. 17, 2000) (finding that the domain name <bramblesequipment.com> is confusingly similar because the combination of the two words "brambles" and "equipment" in the domain name implies that there is an association with the complainant’s business).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and legitimate interests in the disputed domain names. Because Complainant has hereby successfully set forth a prima facie case supporting its allegations, the burden shifts to Respondent to prove that it does have rights and legitimate interests pursuant to Policy ¶ 4(a)(ii). 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 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’s disputed domain names do not resolve to any
operating website. Furthermore,
Respondent can point to no evidence within the record to suggest that it has
any current plans to develop an operating website for any of the disputed
domain names. Indeed, there in
absolutely no basis for finding that Respondent’s use of the disputed domain
names constitutes 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). The Panel therefore finds that Respondent’s
inactive use of the disputed domain names constitutes wholly sufficient
evidence that Respondent lacks rights and legitimate interests in all of the
disputed domain names pursuant to Policy ¶ 4(a)(ii). See Am. Online, Inc. v. Kloszewski, FA 204148 (Nat. Arb. Forum Dec. 4, 2003) (“Respondent's
[inactive] holding of the <aolfact.com> domain name for over six months
is evidence that Respondent lacks rights and legitimate interests in the domain
name.”); see also Flor-Jon Films, Inc. v. Larson, FA 94974
(Nat. Arb. Forum
The evidence within the record, including the WHOIS domain
name registration information, does not allow for a finding that Respondent is
commonly known by the disputed domain names.
Therefore, the Panel finds that Respondent lacks rights and legitimate
interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne
Corp. Services11, Inc., FA 198969 (Nat.
Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the
disputed domain [name], one can infer that Respondent, Onlyne Corporate
Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”);
see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb.
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
None of Respondent’s disputed domain names resolve to any operating websites, nor does Respondent offer any evidence that plans are in the works to develop an operating website. The Panel finds that such inactive use of the disputed domain names constitutes clear bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Hewlett-Packard Co. v. Martineau, FA 95359 (Nat. Arb. Forum Aug. 30, 2000) (“Respondent’s failure to submit an assertion of good faith intent to use the domain name, in addition to the [inactive] holding of the domain name, reveal that Respondent registered and uses the domain name in bad faith.”); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith).
Respondent registered the <wynncasinos.info>
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wynncasinos.info>, <wynncasinos.biz> and <wynncasinos.tv> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: April 18, 2008
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