Harrah's License Company, LLC v.
Claim Number: FA0808001218912
Complainant is Harrah's License Company, LLC (“Complainant”), represented by Jessica
E. Jacob of Alston & Bird, LLP, Georgia, USA.
Respondent is Chad Nordaune (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wsoppromos.com>, registered with Godaddy.com, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically August 4, 2008; the National Arbitration Forum received a hard copy of the Complaint August 5, 2008.
On August 5, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <wsoppromos.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
6, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 26, 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 by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 3, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The domain name that Respondent registered, <wsoppromos.com>, is confusingly similar to Complainant’s WSOP mark.
2. Respondent has no rights to or legitimate interests in the <wsoppromos.com> domain name.
3. Respondent registered and used the <wsoppromos.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Harrah’s License Company, LLC, is a
wholly-owned subsidiary of Harrah’s Operating Company, Inc., which owns or
manages thirty-eight casinos in three countries. Complainant annually holds the World Series
of Poker event at its Rio All-Suite Hotel & Casino in
Respondent, Chad Nordaune, registered the <wsoppromos.com> domain name November 22, 2006. The disputed domain name resolves to a website providing Complainant’s marks and designs, and containing information on Complainant’s services. The resolving website also provides information about other various poker websites.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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.
To satisfy Policy ¶ 4(a)(i), a complainant must first show that is has rights to a mark that predate the respondent’s registration of the disputed domain name. In this case, Complainant clearly has shown rights to the WORLD SERIES OF POKER mark by virtue of its USPTO trademark registration. However, the WSOP mark is best used in this case for purposes of analysis under the Policy. Since Complainant’s USPTO trademark application for this mark was filed prior to Respondent’s registration of the <wsoppromos.com> domain name, the Panel finds that Complainant established rights in the WSOP mark in order to meet this requirement of Policy ¶ 4(a)(i). See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”); see also Thompson v. Zimmer, FA 190625 (Nat. Arb. Forum Oct. 27, 2003) (“As Complainant’s trademark application was subsequently approved by the U.S. Patent and Trademark Office, the relevant date for showing ‘rights’ in the mark for the purposes of Policy ¶ 4(a)(i) dates back to Complainant’s filing date.”).
Respondent’s <wsoppromos.com> domain name contains Complainant’s WSOP mark in its entirety, followed by the word “promos,” which is a standard abbreviation for “promotions.” This generic word is aptly associated with Complainant’s business operations of promoting its World Series of Poker entertainment event. Since the addition of the generic top-level domain “.com” can be ignored under an analysis of the Policy, the Panel concludes that Respondent’s <wsoppromos.com> domain name is confusingly similar to Complainant’s WSOP mark pursuant to Policy ¶ 4(a)(i). See Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant alleges that Respondent does not have rights to or legitimate interests in the <wsoppromos.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests under Policy ¶ 4(a)(ii). Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
According to Complainant, Respondent has no connection or affiliation with Complainant, and has never been granted license or permission to use the WSOP mark in any manner. Combined with the fact that the WHOIS information identifies Respondent as “Chad Nordaune,” the Panel concludes that Respondent is not commonly known by the <wsoppromos.com> domain name pursuant to Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent is using the <wsoppromos.com> domain name to provide information on Complainant’s services, as well as competing poker companies that sponsor poker tournaments and events. Such use amounts to 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) since Respondent presumably profits from this venture by accruing some kind of referral fees. See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); see also State Farm Mut. Auto. Ins. Co. v. LaFaive, FA 95407 (Nat. Arb. Forum Sept. 27, 2000) (“The unauthorized providing of information and services under a mark owned by a third party cannot be said to be the bona fide offering of goods or services.”).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant contends that Respondent’s registration and use
of the <wsoppromos.com>
domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iv). Complainant supports this contention by
arguing that Respondent is attempting to deceive Internet users into believing
that Complainant sponsors, endorses, or is affiliated with Respondent, which is
not the case. The Panel agrees, and
notes that Respondent is using this likelihood of confusion for its own
commercial gain through the accrual of referral fees. The Panel therefore concludes that
Respondent’s registration and use of the <wsoppromos.com>
domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iv). See
The Panel also notes that Respondent’s registration and use
of the <wsoppromos.com>
domain name constitutes bad faith pursuant to Policy ¶ 4(b)(iii) since
Respondent’s promotion of Complainant’s competitors is likely to disrupt
Complainant’s business. See David Hall Rare Coins v.
The Panel finds that Complainant satisfied the elements of ICANN 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 <wsoppromos.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: September 17, 2008.
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