Wynn Resorts Holdings, LLC v. Smart Answer S.A. c/o Susana Gonzales
Claim Number: FA0808001221523
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by John
C. Baum, of Townsend and Townsend and Crew LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <lasvegaswynn.net>, <thewynnhotel.net>, <thewynnhotellasvegas.net>, <thewynnlasvegas.org> and <wynnhotelandcasino.org>, registered with Namesdirect.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 21, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 21, 2008.
On August 22, 2008, Namesdirect confirmed by e-mail to the National Arbitration Forum that the <lasvegaswynn.net>, <thewynnhotel.net>, <thewynnhotellasvegas.net>, <thewynnlasvegas.org> and <wynnhotelandcasino.org> domain names are registered with Namesdirect and that Respondent is the current registrant of the names. Namesdirect has verified that Respondent is bound by the Namesdirect 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 August 29, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 18, 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@lasvegaswynn.net, postmaster@thewynnhotel.net, postmaster@thewynnhotellasvegas.net, postmaster@thewynnlasvegas.org and postmaster@wynnhotelandcasino.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 26, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <lasvegaswynn.net>, <thewynnhotel.net>, <thewynnhotellasvegas.net>, <thewynnlasvegas.org> and <wynnhotelandcasino.org> domain names are confusingly similar to Complainant’s WYNN mark.
2. Respondent does not have any rights or legitimate interests in the <lasvegaswynn.net>, <thewynnhotel.net>, <thewynnhotellasvegas.net>, <thewynnlasvegas.org> and <wynnhotelandcasino.org> domain names.
3. Respondent registered and used the <lasvegaswynn.net>, <thewynnhotel.net>, <thewynnhotellasvegas.net>, <thewynnlasvegas.org> and <wynnhotelandcasino.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Wynn Resorts Holdings, LLC, owns and operates
numerous hotels, resorts and casinos across the world under the WYNN mark. One of those hotel and casino properties is
located in
Respondent’s <lasvegaswynn.net>, <thewynnhotel.net> and <thewynnhotellasvegas.net> domain names were registered on May 7, 2008. Respondent’s <thewynnlasvegas.org> and <wynnhotelandcasino.org> domain names were registered on May 8, 2008. Each of the disputed domain names resolves to a website containing a link to an online gambling service.
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 evidences that it has numerous registrations of
the WYNN mark with trademark authorities worldwide, including in both the
Complainant owns and operates hotels, resorts and casinos in
a variety of locations across the world, including in
Each of the <lasvegaswynn.net>,
<thewynnhotel.net>, <thewynnhotellasvegas.net>, <thewynnlasvegas.org> and <wynnhotelandcasino.org> domain
names contain Complainant’s WYNN mark in its entirety. Further, each of the disputed domain names
contains either the generic top-level domain (“gTLD”) “.net” or “.org.” However, the inclusion of a gTLD is irrelevant
to a Policy ¶ 4(a)(i) analysis. See Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063
(Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the
addition of a generic top-level domain is irrelevant when considering whether a
domain name is identical or confusingly similar under the Policy.”). The <thewynnhotel.net>,
<thewynnhotellasvegas.net>, <thewynnlasvegas.org> domain
names each begin with the article “the.”
The incorporation of the article “the” is generally only for grammatical
purposes and thus does not influence a Policy ¶ 4(a)(i)
determination. See Antoun v. Truth Squad, FA 114766 (Nat. Arb. Forum Aug. 21,
2002) (stating that the article "the" is "often added only
for grammatical purposes, and may be superfluous to the name itself"); see also Marriott Int’l, Inc. v. Stealth
Commerce, FA 109746 (Nat. Arb. Forum May 28, 2002) (“[T]he addition of the
[article] ‘the’ to the beginning of the domain names fails to make them
separate and distinct, as distinguishable from Complainant’s marks.”). The <thewynnhotel.net>,
<thewynnhotellasvegas.net> and
<wynnhotelandcasino.org>
domain names each contain the descriptive terms “hotel” and/or “and
casino.” Hotels and casinos are precisely
the product and service offered under Complainant’s WYNN mark. The inclusion of terms describing
Complainant’s business does not distinguish a disputed domain name. See
Space Imaging LLC v. Brownell,
AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the
respondent’s domain name combines the complainant’s mark with a generic term
that has an obvious relationship to the complainant’s business). And finally, Respondent’s <lasvegaswynn.net>, <thewynnhotellasvegas.net>, <thewynnlasvegas.org> domain
names incorporate the name “
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(i).
As the first step in a Policy ¶ 4(a)(ii) analysis, the Panel
determines that Complainant has establish a prima
facie case that Respondent lacks rights and legitimate interests in the
disputed domain names. The burden is
accordingly shifted to Respondent to demonstrate any rights or legitimate
interests it may hold in the disputed domain names. See
VeriSign Inc. v. VeneSign
No response has been submitted to the Complaint. In consideration of Policy ¶ 4(c), the Panel
will proceed to evaluate the evidence in the record. However, the Panel may proceed with the
presumption that Respondent lacks rights and legitimate interests in the
disputed domain name. See Bank of Am. Corp. v. McCall, FA
135012 (Nat. Arb. Forum Dec. 31, 2002)
(“Respondent's failure to respond not only results in its failure to meet its
burden, but also will be viewed as evidence itself that Respondent lacks rights
and legitimate interests in the disputed domain name.”); see also Desotec N.V.
v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing
to respond allows a presumption that the complainant’s allegations are true
unless clearly contradicted by the evidence).
The WHOIS information for each of the disputed domain names lists the Registrant as “Smart Answer S.A.” and the technical and administrative contact as “Susan Gonzales.” Complainant likewise contends that it has never granted or otherwise provided permission or license to Respondent to use the WYNN mark in any way. Without any additional information in the record, the Panel finds that Respondent is not commonly known by any of the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute); see also 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).
All of the disputed domain names resolve to the same or
similar website that contains a link to an online gambling operation that
Complainant contends “reportedly engages in illegitimate and deceptive business
practices.” The Panel finds that links
to or use of the disputed domain names as an online gambling website 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 Société des Bains de Mer v. Int’l
Lotteries, D2000-1326 (WIPO Jan. 8, 2001) (finding no rights or legitimate
interests where Respondent used the <casinomontecarlo.com> and
<montecarlocasinos.com> domain names in connection with an online
gambling website); see also Imation Corp. v. Streut, FA 125759 (Nat. Arb. Forum
Nov. 8, 2002) (finding that when a respondent uses a disputed domain name to
redirect Internet users to an online casino, this is neither a bona fide
offering of goods or services nor a fair or legitimate noncommercial use).
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(ii).
In these proceedings, Respondent has registered five
disputed domain names containing Complainant’s WYNN mark. The Panel finds this instance sufficient to
create the presumption that Respondent is engaging in a pattern of registering
infringing domain names and accordingly, has registered and is using each of <lasvegaswynn.net>, <thewynnhotel.net>, <thewynnhotellasvegas.net>, <thewynnlasvegas.org> and <wynnhotelandcasino.org> domain
names in bad faith pursuant to Policy ¶ 4(b)(ii). See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum
Sept. 8, 2000) (finding that one instance of registration of several infringing
domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii));
see also EPA European Pressphoto Agency B.V. v. Wilson, D2004-1012
(WIPO Feb. 9, 2005) (finding that the
respondent’s registration of the <epa-photo.com>,
<epaphoto.com> and <epaphotos.com> domain names was sufficient to
constitute a pattern pursuant to Policy ¶ 4(b)(ii)).
Each of the <lasvegaswynn.net>,
<thewynnhotel.net>, <thewynnhotellasvegas.net>, <thewynnlasvegas.org> and <wynnhotelandcasino.org> domain
names resolves to a website containing a link to an online gambling website, which
Complainant reports is an illegitimate and deceptive operation. These online gambling websites presumably
financially benefit Respondent. The
Panel finds that use of the disputed domain names to resolve to gambling
websites constitutes additional evidence that Respondent registered and is
using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv). See Mars, Inc. v. Double Down Magazine,
D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶ 4(b)(iv)
where the respondent linked the domain name <marssmusic.com>, which is
identical to the complainant’s mark, to a gambling website); see also Encyclopaedia Britannica Inc. v.
Shedon.com, D2000-0753 (WIPO Sept. 6, 2000) (finding that the respondent
violated Policy ¶ 4(b)(iv) by using the domain name <britannnica.com> to
hyperlink to a gambling site).
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 <lasvegaswynn.net>, <thewynnhotel.net>, <thewynnhotellasvegas.net>, <thewynnlasvegas.org> and <wynnhotelandcasino.org> domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: October 10, 2008
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