Las Vegas Sands Corp. v. NONE c/o Nick Kornzo and James c/o Dave Rosenbom
Claim Number: FA0804001182353
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Susan
Okin
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <888venetian.com> and <coatistrip.com>, registered with Moniker Online Services, Inc.
Also at issue is the <thepalazzocasino.com> domain name, registered with Samoan.
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
On May
8, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
May 28, 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@thepalazzocasino.com, postmaster@888venetian.com and postmaster@coatistrip.com 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 <thepalazzocasino.com>, <888venetian.com> and <coatistrip.com> domain names are confusingly similar to Complainant’s PALAZZO, VENETIAN and COTAI STRIP marks.
2. Respondent does not have any rights or legitimate interests in the <thepalazzocasino.com>, <888venetian.com> and <coatistrip.com> domain name.
3. Respondent registered and used the <thepalazzocasino.com>, <888venetian.com> and <coatistrip.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Las Vegas Sands Corp., uses the PALAZZO, VENETIAN and COTAI STRIP marks in association with its world-renowned casino, hotel and resort services. Complainant owns a number of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the PALAZZO mark (i.e. Reg. No. 2,683,895 issued February 4, 2003) and for the VENETIAN mark (i.e. Reg. No. 2,322,513 issued February 22, 2000). In addition, Complainant owns a number of trademark registrations in other countries for the COTAI STRIP mark, including one with the Japanese Patent Office (i.e. Reg. No. 5,040,354 issued March 17, 2005).
Respondent registered the <thepalazzocasino.com> domain name on
Preliminary Issue:
Multiple Respondents
The Panel must first consider whether these proceedings have been properly instituted. UDRP ¶ 3(c) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that Respondent is operating under various asserted alleged aliases. Additionally, the National Arbitration Forum’s Supplemental Rule 4(f)(ii) requires a Panel to dismiss the Complaint in relation to the domain names it deems to be insufficiently linked to Respondent.
The WHOIS information for the disputed domain names identify Respondents as “Dave Rosenbaum” and “Nick Kornzo.” However, both Respondents use the same e-mail address at “domains@3000domains.com,” and the domain name servers for the disputed domain names are the same: <ns1.interimnameserver.com> and <ns2.interimnameserver.com>. The Panel finds that the listed aliases are the same person or entity, or entities controlled by the same person or entity, so that the filing of this Complaint is justified and proper pursuant to Supplemental Rule 4(f)(ii). See Yahoo!, Inc. v. Soksripanich & Others., D2000-1461 (WIPO Jan. 29, 2001) (finding multiple aliases to be the same respondent when the administrative contact information of the various subject domain names was the same or quite similar); see also Yahoo! Inc. & GeoCities v. Data Art Corp., D2000-0587 (WIPO Aug. 10, 2000) (decision rendered against multiple aliases where "the addresses used and the Contacts designated [were] inter-linking and identical.").
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.
By registering the PALAZZO, VENETIAN and COTAI STRIP marks with governmental agencies, Complainant has established rights in the marks pursuant to Policy ¶ 4(a)(i). See 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."); see also Smart Design LLC v. Hughes, D2000-0993 (WIPO Oct. 18, 2000) (holding that ICANN Policy ¶ 4(a)(i) does not require the complainant to demonstrate ‘exclusive rights,’ but only that the complainant has a bona fide basis for making the complaint in the first place).
Respondent’s disputed domain names are confusingly similar
to Complainant’s registered marks pursuant to Policy ¶ 4(a)(i). Respondent’s <thepalazzocasino.com> domain name contains Complainant’s mark in its entirety,
adds the generic terms “the” and “casino,” and adds the generic top-level
domain “.com.” The Panel finds that the
addition of generic terms, especially terms with an obvious relationship to
Complainant’s business such as “casino,” create a confusing similarity between
the disputed domain name and the PALAZZO mark.
See Yahoo! Inc. v.
Casino Yahoo, Inc., D2000-0660 (WIPO Aug. 24, 2000) (finding the domain
name <casinoyahoo.com> is confusingly similar to the complainant’s mark);
see also Christie’s Inc. v.
Tiffany’s Jewelry Auction, Inc., D2001-0075 (WIPO Mar. 6, 2001) (finding
that the domain name
<christiesauction.com> is confusingly similar to the complainant's
mark since it merely adds the word “auction” used in its generic sense). Respondent’s <888venetian.com> domain also contains Complainant’s registered VENETIAN mark,
adds the numeral “888,” and adds the gTLD “.com.” The Panel finds that the addition of numerals
to a registered mark fails to created a distinct domain name pursuant to Policy
¶ 4(a)(i). See Omnitel Pronto Italia S.p.A. v. Bella, D2000-1641
(WIPO Mar. 12, 2001) (finding that the contested <omnitel2000.com> domain
name is confusingly similar to the OMNITEL trademark). Respondent’s <coatistrip.com> domain name contains a misspelled version of Complainant’s
COTAI STRIP mark and adds the gTLD “.com.”
The Panel finds that a disputed domain name that contains a misspelled
version of Complainant’s mark is confusingly similar to the mark. See
Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13,
2000) (finding that a domain name which differs by only one letter from a
trademark has a greater tendency to be confusingly similar to the trademark
where the trademark is highly distinctive).
Lastly, the Panel finds that the addition of a gTLD fails to distinguish
a disputed domain name from a complainant’s registered mark. See
Sporty's Farm L.L.C. vs. Sportsman's Mkt., Inc., 202 F.3d 489 (2d Cir.
2000), cert. denied, 530
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks all rights and legitimate interests in the disputed domain names. If a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that rights and legitimate interests exist pursuant to Policy ¶ 4(a)(ii). In this case, the Panel finds that Complainant has established a prima facie case and the burden is shifted to Respondent. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); 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).
By failing to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain names. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”); see also Law Soc’y of Hong Kong v. Domain Strategy, Inc., HK-0200015 (ADNDRC Feb. 12, 2003) (“A respondent is not obligated to participate in a domain name dispute . . . but the failure to participate leaves a respondent vulnerable to the inferences that flow naturally from the assertions of the complainant and the tribunal will accept as established assertions by the complainant that are not unreasonable.”). However, the Panel will examine the evidence on record against the applicable ¶ 4(c) elements before making a final determination with regards to Respondent’s rights and legitimate interests.
Complainant contends that Respondent is neither commonly
known by, nor licensed to, register the disputed domain names.
Respondent’s WHOIS information identifies Respondent as “Dave
Rosenbaum” and “Nick Kornzo”, evidence that Respondent is not commonly known by
any of the disputed domain names and establishes that Respondent lacks rights
and legitimate interests pursuant to Policy ¶ 4(c)(ii). See
Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent
has registered the domain name under the name ‘Ilyoup Paik a/k/a David
Sanders.’ Given the WHOIS domain name
registration information, Respondent is not commonly known by the
[<awvacations.com>] domain name.”); see
also 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.”).
Respondent’s disputed domain names
resolve to websites offering links to third-party websites in competition with
Complainant. The Panel finds that such
use of the disputed domain names are neither a bona fide offering of goods and services pursuant to Policy ¶
4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶
4(c)(iii). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA
104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed
domain name in connection with a bona fide offering of goods and services
because Respondent is using the domain name to divert Internet users to
<visual.com>, where services that compete with Complainant are
advertised.”); see also Coryn
Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003)
(finding that the respondent was not using the domain names for a bona fide
offering of goods or services nor a legitimate noncommercial or fair use
because the respondent used the names to divert Internet users to a website
that offered services that competed with those offered by the complainant under
its marks).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the disputed domain names in order to intentionally attract Internet users to its website by creating a likelihood of confusion with Complainant’s marks and offering third-party links to competing websites. The Panel infers that Respondent receives click-through fees for diverting Internet users in this fashion. Therefore, pursuant to Policy ¶ 4(b)(iv), the Panel finds such use of the disputed domain names constitutes bad faith registration and use. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain).
In addition, Respondent’s use of the disputed domain names to compete with Complainant is further evidence of bad faith. The Panel finds that a registered domain name used primarily to disrupt the business of a competitor demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent); see also EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business).
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 <thepalazzocasino.com>, <888venetian.com> and <coatistrip.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 13, 2008
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