Wynn Resorts Holdings LLC v.
M Soares
Claim Number: FA0803001155979
PARTIES
Complainant is Wynn Resorts Holdings LLC, (“Complainant”) represented by Jennifer D. Arkowitz,
of Townsend and Townsend and Crew LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wynncasinos.us>, registered with GoDaddy.com,
Inc.
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.
James A. Carmody, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on
On
On March 11, 2008, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of March 31, 2008 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent in compliance
with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the
“Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel
(the “Panel”) finds that the Forum has discharged its responsibility under
Paragraph 2(a) of the Rules. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the Rules, the Forum’s Supplemental Rules and any
rules and principles of law that the Panel deems applicable, without the
benefit of any Response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <wynncasinos.us> domain name is confusingly similar to Complainant’s WYNN mark.
2.
Respondent does not have any rights or
legitimate interests in the <wynncasinos.us>
domain name.
3.
Respondent registered and used the <wynncasinos.us> domain name in bad
faith.
B. Respondent
Respondent has failed to provide a response to these proceedings.
FINDINGS
Complainant, Wynn Resorts Holdings, LLC, is
engaged in the casino and resort hotel business. Complainant provides casino and hotel goods
and services under its WYNN mark.
Complainant alleges it has registered several variations of its WYNN
mark with multiple governmental authorities, but does not provide the Panel
with the dates and registration numbers for these trademarks. Complainant also alleges it has continuously
used its WYNN mark since the opening of its first WYNN resort in 2003. Complainant’s WYNN mark has been used in the
media to describe Complainant’s services since 2003. Additionally, Complainant has maintained an
online presence at the <wynncasinos.com> domain name since
Respondent registered the <wynncasinos.us> domain name on
DISCUSSION
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 the Complainant's undisputed
representations pursuant to Paragraphs 5(f), 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 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; and
(2) the Respondent has no rights or legitimate interests in respect of
the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical and/or Confusingly Similar
Complainant alleges it has registered its
WYNN mark or variations of its WYNN mark with multiple governmental
agencies. Complainant, however, does not
provide the Panel with dates, registration numbers or any extrinsic evidence of
these registrations. Nevertheless,
Complainant is not required to register its WYNN mark pursuant to Policy
4(a)(i), provided it can establish common law rights in its WYNN mark. See
SeekAmerica Networks Inc. v.
Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the UDRP does not
require that the complainant's trademark or service mark be registered by a
government authority or agency for such rights to exist); see also British
Broad. Corp. v. Renteria, D2000-0050 (WIPO
Complainant has
continuously used its WYNN mark since it opened its first resort in 2003. The media has used Complainant’s WYNN mark to
describe Complainant’s goods and services since 2003. Additionally, Complainant has maintained an
online presence at the <wynncasinos.com> domain name since
Respondent’s <wynncasinos.us> domain name is
confusingly similar to Complainant’s WYNN mark because it merely incorporates
the mark with the descriptive term “casinos.”
Additionally, the country-code top-level domain “.us” is not relevant in
evaluating whether a disputed domain name is confusingly similar to a
mark. Therefore, the Panel finds Respondent’s
<wynncasinos.us> domain name
is confusingly similar to Complainant’s WYNN mark pursuant to Policy ¶
4(a)(i). See Arthur Guinness Son & Co. (
The Panel finds
Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainant has
alleged Respondent does not have rights or legitimate interests in the disputed domain name. Once
Complainant makes a prima facie case
in support of its allegations, the burden shifts to Respondent to prove it does
have rights or legitimate interests in the disputed domain name pursuant to
Policy ¶ 4(a)(ii). The Panel finds
Complainant has established a prima facie
case and due to Respondent’s failure to submit a response, the Panel may assume
Respondent does not have rights or legitimate interests in the disputed domain
name. The Panel, however, will
examine the record to determine whether Respondent has rights or legitimate
interests pursuant to Policy ¶ 4(c). See G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum
Complainant has established common law rights
in its WYNN mark dating back to at least 2003.
Respondent has not responded to these proceedings and thus has produced
no evidence establishing its rights in a trademark related to the <wynncasinos.us> domain name. Therefore, Complainant has adequately
satisfied Policy ¶ 4(c)(i). See Meow
Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum
Respondent has not activated a website under its <wynncasinos.us> domain name. The Panel concludes Respondent’s failure to make an active use of the disputed domain name is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(ii), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iv). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in the domain name where there is no proof that the respondent made preparations to use the domain name or one like it in connection with a bona fide offering of goods and services before notice of the domain name dispute, the domain name did not resolve to a website, and the respondent is not commonly known by the domain name).
Respondent does not appear to be commonly known by the <wynncasinos.us> domain name. The WHOIS information indicates Respondent is known as “M Soares.” Also, Complainant alleges it has never authorized Respondent to use its WYNN mark. Therefore, the Panel finds Respondent is not commonly known by the <wynncasinos.us> domain name pursuant to Policy ¶ 4(c)(iii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent’s <wynncasinos.us> domain name does not
resolve to an active website. The Panel
finds Respondent’s failure to make an active use of the disputed domain name is
evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See
DCI
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wynncasinos.us> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: April 17, 2008
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