Claim Number: FA0907001272685
Complainant is C P
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <belleofbatonrougecasino.com>, registered with Above, 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 July 8, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 9, 2009.
On July 8, 2009, Above, Inc. confirmed by e-mail to the National Arbitration Forum that the <belleofbatonrougecasino.com> domain name is registered with Above, Inc. and that Respondent is the current registrant of the name. Above, Inc. has verified that Respondent is bound by the Above, 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 July 14, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 3, 2009 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 August 6, 2009, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <belleofbatonrougecasino.com> domain name is confusingly similar to Complainant’s BELLE OF BATON ROUGE mark.
2. Respondent does not have any rights or legitimate interests in the <belleofbatonrougecasino.com> domain name.
3. Respondent registered and used the <belleofbatonrougecasino.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, C P Baton Rouge, LLC, is a subsidiary of
Tropicana Entertainment Holdings, LLC, which owns or operates ten casinos and
resorts throughout the
Respondent registered the <belleofbatonrougecasino.com> domain name on January 25, 2008. The disputed domain name resolves to a website that features links and advertisements for Complainant’s competitors.
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’s registration of the BELLE
OF BATON ROUGE mark with the USPTO adequately demonstrates Complainant’s rights
in the mark under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v.
Bonds, FA 873143
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
domain name includes Complainant’s entire BELLE OF BATON ROUGE mark with the
following changes: (1) the spaces between the words of the mark have been
removed; (2) the generic top-level domain “.com” has been added; and (3) the
descriptive term “casino” has been added.
As for the removal of spaces and the addition of a generic top-level
domain, such alterations have been deemed immaterial and irrelevant by previous
panels. Moreover, the word “casino”
aptly describes Complainant’s business, and as such actually heightens the
resulting confusing similarity.
Therefore, the Panel finds that the disputed domain name is confusingly
similar to Complainant’s mark under Policy ¶ 4(a)(i). See
Bond & Co. Jewelers, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant must successfully assert a sufficient prima facie case supporting its allegations before Respondent receives the burden of demonstrating its rights or legitimate interests. The Panel finds that Complainant has met its burden, and therefore Respondent must demonstrate its rights or legitimate interests under Policy ¶ 4(c). See 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).”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s disputed domain name resolves to a website that features third-party links and advertisements for Complainant’s competitors, which likely benefits Respondent through the receipt of commercial referral fees. The Panel finds that this use does not constitute 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 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 also Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names).
There is no evidence within the record for the Panel to conclude that Respondent is or ever was known by the disputed domain name. Even the registrant of record in the WHOIS information is listed as “Transure Enterprise Ltd. c/o Host Master,” which bears no similarity to the disputed domain name. Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name under 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 Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent intended to disrupt
Complainant’s business and take advantage of Complainant’s goodwill surrounding
its mark by diverting Internet users to Complainant’s competitors. The Panel therefore finds that Respondent
engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent registered and used the domain name in
bad faith, pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of
a competitor of Complainant . . .”); see also
Moreover, Respondent has created a substantial likelihood of confusion as to the source and affiliation of the disputed domain name and corresponding website. Respondent benefits from such a likelihood of confusion, as it receives referral fees for the competitive advertisements that are displayed to the diverted Internet users. The Panel finds this to be adequate evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”); see also 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.’”).
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 <belleofbatonrougecasino.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: August 19, 2009
National Arbitration Forum
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