Harrah's License Company, LLC v. Global Services - This domain may be for sale c/o G, Chris
Claim Number: FA0808001222448
Complainant is Harrah's License Company, LLC (“Complainant”), represented by Jessica
E. Jacob, of Alston & Bird, LLP, Georgia,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <thewsop.com>, registered with Godaddy.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.
James A Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 27, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 29, 2008.
On August 28, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <thewsop.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.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 September
3, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
September 23, 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
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 30, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A Crary 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <thewsop.com> domain name is confusingly similar to Complainant’s WORLD SERIES OF POKER mark.
2. Respondent does not have any rights or legitimate interests in the <thewsop.com> domain name.
3. Respondent registered and used the <thewsop.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Harrah’s License Company, LLC, is a subsidiary of Harrah’s Operating Company that owns or manages thirty-eight casinos in three countries. One of Complainant’s most important events is the annual World Series of Poker (“WSOP”). The WSOP has over 50,000 participants each year competing for over $150 million in prize money. Complainant holds a registration of its WORLD SERIES OF POKER mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,025,395 issued November 18, 1975). In addition, Complainant has a domain name registration for its <wsop.com> domain name.
Respondent registered the <thewsop.com> domain name on December 23, 2004. The website resolving from the disputed domain name contains Complainant’s entire mark and several hyperlinks to various third-party websites. Respondent’s WHOIS information contains the phrase, “This domain may be for sale.”
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 sufficiently established rights in the WORLD SERIES OF POKER mark because it holds a registration of the mark with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also 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.").
The <thewsop.com>
domain name contains an abbreviation of Complainant’s mark and merely adds the
article “the” to the abbreviation. The
Panel finds that abbreviating Complainant’s mark and adding an article does not
distinguish the disputed domain name from Complainant’s WORLD SERIES OF POKER
mark for the purposes of confusing similarity under Policy ¶ 4(a)(i). See Microsoft
Corp. v. Montrose Corp., D2000-1568 (WIPO Jan. 25, 2001) (finding
the domain name <ms-office-2000.com> to be confusingly similar even
though the mark MICROSOFT is abbreviated); see
also
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
At the outset, Complainant must make a prima facie showing that Respondent lacks both rights and legitimate interests in the <thewsop.com> domain name. Next, the burden then shifts to Respondent and Respondent must establish that it has rights and legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). 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 G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Respondent’s disputed domain name resolves to a website that contains Complainant’s entire mark as well as several hyperlinks to various third-party websites. The Panel accordingly infers that Respondent receives click-through fees for these hyperlinks. Thus, the Panel finds that this diversion of Internet users to Respondent’s confusingly similar domain name and its corresponding website for commercial gain is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and is not a legitimate noncommercial or fair use under Policy ¶ (4)(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
Furthermore, Respondent’s WHOIS does not indicate that
Respondent is commonly known by the <thewsop.com> domain name and Respondent
has not offered any evidence to suggest otherwise. Thus, the Panel finds that Respondent is not
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that
Respondent is ‘commonly known by’ the disputed domain name” as one factor in
determining that Policy ¶ 4(c)(ii) does not apply); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
Respondent’s WHOIS information does, however, indicate that Respondent has made a general offer of sale for the <thewsop.com> domain name. Under the “Registrant” category resides the phrase “This domain may be for sale.” The Panel finds this to be sufficient evidence of a general offer of sale for the disputed domain name and, thus finds that Respondent has no rights and legitimate interests in the <thewsop.com> domain name pursuant to Policy ¶ 4(a)(ii). See Mothers Against Drunk Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) (holding that under the circumstances, the respondent’s apparent willingness to dispose of its rights in the disputed domain name suggested that it lacked rights or legitimate interests in the domain name); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Because Respondent has made an offer of sale for the <thewsop.com>
domain name, the Panel finds that this conduct to be evidence of registration
and use in bad faith under Policy ¶ 4(b)(i).
See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000)
(finding that “general offers to sell the domain name, even if no certain price
is demanded, are evidence of bad faith”); see
also Banca Popolare Friuladria
S.p.A. v. Zago, D2000-0793 (WIPO Sept. 3, 2000) (finding bad faith where
the respondent offered the domain names for sale).
In addition, Respondent uses the confusingly similar domain
name to collect click-through fees. This
creates a likelihood of confusion as to Complainant’s affiliation with
Respondent’s domain name and corresponding website. The Panel finds that this commercial benefit
and likelihood of confusion constitutes bad faith registration and use under
Policy ¶ 4(b)(iv).
See Am. Online, Inc. v. Tencent
Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith
where the respondent registered and used a domain name confusingly similar to
the complainant’s mark to attract users to a website sponsored by the
respondent); 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).
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 <thewsop.com> domain name be TRANSFERRED from Respondent to Complainant.
James A Crary, Panelist
Dated: October 14, 2008
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