Hard Rock Cafe International (
Claim Number: FA0910001290206
Complainant is Hard Rock Cafe International (USA), Inc. (“Complainant”), represented by Zachary
D. Messa, of Johnson, Pope, Bokor, Ruppel & Burns,
LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <hardrockpoker.net>, registered with Godaddy.com, Inc.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <hardrockpoker.net> domain name is confusingly similar to Complainant’s HARD ROCK mark.
2. Respondent does not have any rights or legitimate interests in the <hardrockpoker.net> domain name.
3. Respondent registered and used the <hardrockpoker.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hard Rock Cafe
International (USA), Inc., has been in the leisure and entertainment industry
since at least as early as 1978. In
1995, Complainant opened a casino in
Respondent, Ronald Robinson,
registered the <hardrockpoker.net> domain name on
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
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.
Respondent, Ronald Robinson,
registered the <hardrockpoker.net> domain name on
The <hardrockpoker.net>
domain name contains Complainant’s mark, omitting the space between two words
of the HARD ROCK mark, adding the generic word “poker,” and the generic top-level
domain (“gTLD”) “.net.” The Panel finds
that none of the differences between Complainant’s HARD ROCK mark and
Respondent’s <hardrockpoker.net>
domain name create distinctiveness and, therefore, 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 Complainant has satisfied Policy ¶ 4(a)(i).
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the <hardrockpoker.net> domain name. If
the Panel finds that Complainant’s allegations establish such a prima facie case,
the burden shifts to Respondent to show that it does indeed have rights or
legitimate interests in the disputed domain name pursuant to the guidelines in
Policy ¶ 4(c). The Panel finds
that Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no
rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(a)(ii). Since
no response was submitted in this case, the Panel may presume that Respondent
has no rights or legitimate interests in the disputed domain name. However, the Panel will still examine the
record in consideration of the factors listed in Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb.
Forum
Complainant asserts that Respondent has no license or
agreement with Complainant authorizing Respondent to use its HARD ROCK mark,
and the WHOIS information identifies the registrant as “Ronald Robinson.” The Panel
finds no evidence in the record suggesting that Respondent is commonly known by
the disputed domain name. Thus, the
Panel finds that Respondent is not commonly known by the <hardrockpoker.net> domain name under
Policy ¶ 4(c)(ii).
See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum
Complainant contends that the
website resolving from the disputed domain name displays banner advertisements
and links to gambling websites. The
Panel infers that Respondent receives click-through-fees for these links and
advertisements. Additionally, some of
these gambling websites directly compete with Complainant’s casino
business. The Panel finds this is not 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 Jerry Damson, Inc. v.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <hardrockpoker.net>
domain name to host links and advertisement for gambling websites. Complainant owns a casino in
The website
resolving from the <hardrockpoker.net>
domain name displays banner advertisements and links to gambling websites. The Panel infers that Respondent receives
click-through-fees for these links and advertisements. Given the confusingly similar nature of the
disputed domain name and that Complainant owns a casino in
The Panel finds that Complainant has satisfied 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 <hardrockpoker.net> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice Supreme Court, NY (Ret.)
Dated: November 25, 2009
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