Las Vegas Sands Corp v. Kingsands c/o sands king
Claim Number: FA0806001210810
Complainant is Las Vegas Sands Corp (“Complainant”), represented by Susan
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kingsands.com>, registered with Bizcn.com, 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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 19, 2008; the National Arbitration Forum received a hard copy of the Complaint on June 20, 2008. The Complaint was submitted in both Chinese and English.
On June 22, 2008, Bizcn.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <kingsands.com> domain name is registered with Bizcn.com, Inc. and that Respondent is the current registrant of the name. Bizcn.com, Inc. has verified that Respondent is bound by the Bizcn.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On June 25, 2008, a Chinese language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 15, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 23, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch as Panelist.
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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <kingsands.com> domain name is confusingly similar to Complainant’s SANDS mark.
2. Respondent does not have any rights or legitimate interests in the <kingsands.com> domain name.
3. Respondent registered and used the <kingsands.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Las Vegas Sands Corp., has registered the SANDS
mark in numerous jurisdictions world wide, including with both the United
States Patent and Trademark Office (“USPTO”) (Reg. No. 1,209,102 issued Sept.
14, 1982) and the Government of the People’s Republic of China (“GPRC”) (Reg.
No. 3,385,763 issued November 28, 2002) for casino, hotel and resort
services. In 2004, as a part of
Complainant’s international expansion, it opened up the SANDS casino in the
Chinese administrative region of
The <kingsands.com> domain name was registered
on April 5, 2008 and originally resolved to an identical copy of Complainant’s
website in Chinese at Complainant’s <sands.com.mo> domain name. The website further purported to actually be
Complainant. On May 8, 2008, Respondent
learned that the disputed domain name was being hosted in
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 has sufficiently established rights in the SANDS mark through its numerous registrations worldwide pursuant to Policy ¶ 4(a)(i), including with the USPTO and the Chinese trademark authority. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world).
The <kingsands.com> domain name contains Complainant’s SANDS mark in its entirety followed by the generic top-level domain (“gTLD”) “.com.” It is well established that the inclusion of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) ( “[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). The disputed domain name precedes Complainant’s mark with the generic term “king.” Complainant argues that this refers to the “king” on many of the cards used in various gaming and gambling services it provides. Likewise, a generic term such as “king,” especially when that term corresponds with the products or services under a complainant’s mark, does not distinguish a disputed domain name. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Victoria’s Secret v. Plum Promotions, FA 96503 (Nat. Arb. Forum Feb. 27, 2001) (“The mere addition of the generic term “tv” does not reduce the likelihood of confusion under Policy 4(a)(i).”). Consequently, the Panel finds that the <kingsands.com> domain name is confusingly similar to Complainant’s SANDS mark pursuant to Policy ¶ 4(a)(i).
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(i).
Before a panel proceeds with making determinations under
Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent lacks rights and legitimate
interests in the <kingsands.com> domain name. See
VeriSign Inc. v. VeneSign
Respondent has failed to file a response to the Complaint. Therefore, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name. However, the Panel will nonetheless examine the record in consideration of the factors listed under Policy ¶ 4(c). See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because Respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Although Respondent’s WHOIS information contains a “sands king” identifier, there is nothing else in the record that suggests that Respondent is or ever was commonly known by the <kingsands.com> domain name. Furthermore, Complainant has stated that it has never granted permission or license to Respondent to use the SANDS mark in any way. In the absence of any additional evidence, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that although the respondent listed itself as “AIM Profiles” in the WHOIS contact information, there was no other evidence in the record to suggest that the respondent was actually commonly known by that domain name); see also MB Fin. Bank, N.A. v. mbfinancialmortgage.com, FA 405073 (Nat. Arb. Forum Mar. 11, 2005) (“[D]espite being listed in the WHOIS information as ‘mbfinancialmortgage.com,’ Respondent is not commonly known by this domain name nor is [it] authorized to register domain names featuring Complainant’s MB FINANCIAL mark.”).
No active use is being made of the disputed domain name. It currently resolves to a blank error page. Previous panels have determined that inactive use of a disputed domain name may presumptively lead to a finding that Respondent lacks rights and legitimate interests in a disputed domain name. Similarly, the Panel finds that Respondent’s inactive use of the <kingsands.com> domain name does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's [inactive] holding of the domain name does not establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”); see also 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 is making no use of the domain name in question)
These findings are further supported by Respondent’s prior use of the disputed domain name. At the earliest, before May 8, 2008, the date that Complainant filed a complaint regarding the disputed domain name with the local authorities where Respondent resides, Respondent’s <kingsands.com> domain name resolved to an identical copy of Complainant’s website corresponding to its <sands.com.mo> domain name. The Panel finds this to be a classic example of a phishing scheme, and may presume that Respondent was attempting to fraudulently obtain personal information from the customers of Complainant. Accordingly, the Panel finds this also to constitute neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (defining “phishing” as “a practice that is intended to defraud consumers into revealing personal and proprietary information”); see also Las Vegas Sands Corp. v. you wanxian, FA 1089025 (Nat. Arb. Forum Nov. 19, 2007) (“Respondent is use of the <weinisimacao.com> domain name to operate a website that is identical in appearance to Complainant’s own legitimate website. Complainant contends that Respondent is seeking to collect personal information of Complainant’s customers looking for Complainant’s services online or seeking employment with Complainant. The Panel finds this use amounts to a phishing scheme under the UDRP and does not constitute a use in connection with 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 also Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(ii).
The Panel finds Respondent’s prior phishing attempt with the
disputed domain name to be conclusive evidence that Respondent registered and
previously used the <kingsands.com> domain name in bad faith for
the purpose of commercially benefiting from its confusing similarity with
Complainant’s mark pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v.
However, since the disputed domain name is no longer being used as a phishing scheme, the Panel must determine whether Respondent is also currently using the disputed domain name in bad faith. See Sanitech Corp. v. Paton, FA 935273 (Nat. Arb. Forum Apr. 30, 2007) (holding that Policy ¶ 4(a)(iii) requires bad faith registration and use).
The <kingsands.com> domain name is currently being put to no active use. It resolves to nothing but a blank error page. Without a response, the Panel finds this to be sufficient to establish Respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(a)(iii). See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”); see also 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 passive holding of a domain name permits an inference of registration and use in bad faith).
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kingsands.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Date: August 6, 2008
National Arbitration Forum
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