Harrah's License Company, LLC v. Thongdee Partnership Limited
Claim Number: FA0806001210320
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 <wsop2005.com>, <wsop2006.com>, <wsop2007.com>, <wsop2008.com>, <wsop2009.com>, and <wsop2010.com>, 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
On June
23, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 14, 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@wsop2005.com, postmaster@wsop2006.com, postmaster@wsop2007.com, postmaster@wsop2008.com, postmaster@wsop2009.com, postmaster@wsop2010.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 <wsop2005.com>, <wsop2006.com>, <wsop2007.com>, <wsop2008.com>, <wsop2009.com>, and <wsop2010.com> 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 <wsop2005.com>, <wsop2006.com>, <wsop2007.com>, <wsop2008.com>, <wsop2009.com>, and <wsop2010.com> domain names.
3. Respondent registered and used the <wsop2005.com>, <wsop2006.com>, <wsop2007.com>, <wsop2008.com>, <wsop2009.com>, and <wsop2010.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns and operates casinos worldwide, and holds events such as the “World Series of Poker” at these casinos. Complainant promotes the World Series of Poker under the WORLD SERIES OF POKER mark, which Complainant registered with the United States Patent and Trademark Office (“USPTO”) on November 18, 1975 (Reg. No. 1,025,395), and the WSOP mark, which Complainant claims it has used continuously in commerce since 2003, and which Complainant registered with the USPTO on September 11, 2007 (Reg. No. 3,292,250). Complainant owns or manages over forty casinos in three countries, and is the largest casino entertainment company in the world.
Respondent registered the <wsop2005.com> and <wsop2006.com>
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.
The Panel finds that Complainant has established rights in
the WORLD SERIES OF POKER mark for purposes of Policy ¶ 4(a)(i)
through its trademark registration with the USPTO. See
Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum
Complainant contends that the
disputed domain names are confusingly similar to its WORLD SERIES OF
POKER mark. The
disputed domain names consist of an acronym for WORLD SERIES
OF POKER, “WSOP,” plus one each of a series of six years, 2005 through 2010,
with the generic top-level domain (“gTLD”) “.com”
added to the end. “WSOP” is a common abbreviation
for WORLD SERIES OF POKER, and in fact, Complainant alleges that it has
used that acronym to promote the WORLD SERIES OF POKER event since at least
2003. Complainant also registered the
WSOP mark with the USPTO and has rights to the WSOP mark dating back to
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and
legitimate interests in the disputed domain names.
Under Policy ¶ 4(a)(ii), after the complainant
makes a prima facie case against the
respondent, the respondent then has the burden of showing evidence that it does
have rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has made a prima facie case under Policy ¶ 4(a)(ii). See G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum
Complainant contends that Respondent is not commonly known
by the disputed
domain names nor has it ever been the owner or licensee of the WORLD SERIES OF
POKER mark. The WHOIS record for the
disputed domain name lists Respondent as “Thongdee
Partnership Limited.” This
evidence, along with the fact that Respondent has failed to show any evidence
contrary to Complainant’s contentions, compels the Panel to find that
Respondent is not commonly known as any of the disputed domain names pursuant to
Policy ¶ 4(c)(ii).
See Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding
that the respondent was not commonly known by <aolcamera.com> or
<aolcameras.com> because the respondent
was doing business as “Sunset Camera” and “World Photo Video &
Imaging Corp.”);
see also MRA Holding, LLC
v. Costnet, FA 140454 (Nat. Arb. Forum
Respondent maintains a
website resolving from the <wsop2005.com>, <wsop2006.com>,
<wsop2007.com>, and <wsop2008.com> domain
names, which is titled “World Series of Poker 2008” and
advertises third-party poker websites. The title deceptively suggests that
Respondent is associated with Complainant, and the advertisements indicate that
Respondent is gaining commercially from the use of Complainant’s mark to
advertise competitors of Complainant.
The Panel finds that these uses of the <wsop2005.com>, <wsop2006.com>, <wsop2007.com>,
and <wsop2008.com> domain names are neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor
a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See
Société des Bains de Mer v. Int’l
Lotteries, D2000-1326 (WIPO
Respondent is not making any active use of the <wsop2009.com> and <wsop2010.com> domain names, and has
made no demonstrable preparations to use the domain names. The Panel finds that Respondent’s inactive
use of the <wsop2009.com> and <wsop2010.com> domain
names is not sufficient to establish rights or legitimate interests for
purposes of Policy ¶ 4(a)(ii). See
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); see also Nike, Inc. v. Crystal Int’l, D2001-0102
(WIPO Mar. 19, 2001) (finding no rights or legitimate interests where the
respondent made no use of the infringing domain names).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Complainant contends that Respondent is using the <wsop2005.com>, <wsop2006.com>, <wsop2007.com>,
and <wsop2008.com> domain names to divert Internet visitors
to Respondent’s website that resolves from those domain names and advertises
for Complainant’s competitors.
Complainant also contends that Respondent intends to disrupt
Complainant’s business through this diversion.
The Panel finds that Respondent’s use of these disputed domain named
disrupts Complainant’s business, and is evidence of registration and use in bad
faith pursuant to Policy ¶ 4(b)(iii).
Complainant also contends that Respondent is gaining
commercially through this diversion, both through click-through fees and
through the competing services that Respondent is offering. The Panel finds that this is an intentional
use of the disputed domain name for commercial gain through a likelihood of
confusion with Complainant’s mark, and so, pursuant to Policy ¶ 4(b)(iv), this use is also evidence of registration and use in
bad faith. 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 Amazon.com, Inc. v. Shafir, FA 196119
(Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name at
issue in direct competition with Complainant, and giving the impression of
being affiliated with or sponsored by Complainant, this circumstance qualifies
as bad faith registration and use of the domain name pursuant to Policy ¶
4(b)(iv).”).
There is no evidence that
Respondent is making any active use of the <wsop2009.com> and <wsop2010.com> domain names, nor is there
evidence that Respondent has made demonstrable preparations to use the domain
names. The Panel finds that Respondent’s
failure to make active use of the <wsop2009.com> and <wsop2010.com>
domain names is also evidence of registration and use in bad faith
pursuant to Policy ¶ 4(a)(iii). See
Caravan Club v. Mrgsale, FA 95314
(Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the
domain name or website that connects with the domain name, and that failure to
make active use of a domain name permits an inference of registration and use
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).
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 <wsop2005.com>, <wsop2006.com>, <wsop2007.com>, <wsop2008.com>, <wsop2009.com>, and <wsop2010.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: August 5, 2008
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