national arbitration forum

 

DECISION

 

Green Valley Ranch Gaming, LLC v. Unister GmbH c/o Daniel Kirchhof

Claim Number: FA1003001311485

 

PARTIES

Complainant is Green Valley Ranch Gaming, LLC (“Complainant”), represented by Erin E. Lewis, of Brownstein Hyatt Farber Schreck, Nevada, USA.  Respondent is Unister GmbH c/o Daniel Kirchhof (“Respondent”), Germany.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <green-valley-ranch-resort.com>, registered with Psi-Usa, Inc. d/b/a Domain Robot.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on March 3, 2010.

 

On March 4, 2010, Psi-Usa, Inc. d/b/a Domain Robot confirmed by e-mail to the National Arbitration Forum that the <green-valley-ranch-resort.com> domain name is registered with Psi-Usa, Inc. d/b/a Domain Robot and that Respondent is the current registrant of the name.  Psi-Usa, Inc. d/b/a Domain Robot has verified that Respondent is bound by the Psi-Usa, Inc. d/b/a Domain Robot 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 March 9, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 29, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@green-valley-ranch-resort.com.  Also on March 9, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.

 

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On April 6, 2010, 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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1.  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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <green-valley-ranch-resort.com> domain name is confusingly similar to Complainant’s GREEN VALLEY RANCH mark.

 

2.      Respondent does not have any rights or legitimate interests in the <green-valley-ranch-resort.com> domain name.

 

3.      Respondent registered and used the <green-valley-ranch-resort.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Green Valley Ranch Gaming, LLC, owns and operates the Green Valley Ranch Resort, Spa and Casino in Henderson, Nevada.  Complainant has continuously used the GREEN VALLEY RANCH mark in connection with its hotel and casino services.  Complainant holds several registrations of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg.  No. 2,672,954 issued January 7, 2003).

 

Respondent, Unister GmbH c/o Daniel Kirchhof, registered the <green-valley-ranch-resort.com> domain name on July 20, 2009.  The disputed domain name resolves to a website that displays a hotel reservation service that directly competes with Complainant.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant has established rights in the GREEN VALLEY RANCH mark under Policy ¶ 4(a)(i) through its several registrations of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg.  No. 2,672,954 issued January 7, 2003).  See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).

 

The <green-valley-ranch-resort.com> domain name contains Complainant’s entire GREEN VALLEY RANCH mark, replaces the spaces within the mark with hyphens, adds the descriptive term “resort,” which describes Complainant’s services, and adds the generic top-level (“gTLD”) “.com.”  The Panel finds that none of these alterations to Complainant’s mark sufficiently distinguishes the disputed domain name from Complainant’s mark.  Therefore, the Panel finds that the <green-valley-ranch-resort.com> domain name is confusingly similar to Complainant’s GREEN VALLEY RANCH mark under Policy ¶ 4(a)(i).  See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) (finding that the addition of a hyphen between terms of a registered mark did not differentiate the <p-zero.org> domain name from the P ZERO mark under Policy ¶ 4(a)(i)); see also Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

Initially, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name.  Once Complainant makes this showing, the burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name.  The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii).  The burden now shifts to Respondent, from whom no response was received.  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).”).  Although Respondent did not allege that it had rights or legitimate interests in the disputed domain name, the Panel elects to examine the record under Policy ¶ 4(c).

 

The WHOIS information for the <green-valley-ranch-resort.com> domain name lists “Unister GmbH c/o Daniel Kirchhof” as the registrant, which does not indicate that Respondent is commonly known by the disputed domain name.  Respondent has not presented any evidence suggests that Policy ¶ 4(c)(ii) applies in this case.  Therefore, the Panel finds that Respondent is not commonly known by the <green-valley-ranch-resort.com> domain name under Policy ¶ 4(c)(ii).  See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).

 

The <green-valley-ranch-resort.com> domain name resolves to a website that displays a hotel reservation service that directly competes with Complainant.  The Panel finds that such a use 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 Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Since Respondent registered the <green-valley-ranch-resort.com> domain name on July 20, 2009, the disputed domain name has resolved to website that features a competing hotel reservation service.  The Panel finds that Respondent’s use of the disputed domain name disrupts Complainant’s business.  The Panel further finds that such a disruption constitutes bad faith registration and use under Policy ¶ 4(b)(iii).  See Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel agency and thus operates in the same business as the Complainant. The parties can therefore be considered as competitors. The Panel thus finds that the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which constitutes evidence of registration and use in bad faith under Policy 4(b)(iii).”); see also Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant).

 

The Panel finds that Respondent’s use of the confusingly similar <green-valley-ranch-resort.com> domain name to operate a competing website creates a likelihood of confusion as to Complainant’s affiliation with the disputed domain name.  The Panel further finds that Respondent is commercially gaining from this likelihood of confusion by operating its competing business, which constitutes bad faith registration and use under Policy ¶ 4(b)(iv).  See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark); see also Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)).

 

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.

 

Accordingly, it is Ordered that the <green-valley-ranch-resort.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Louis E. Condon, Panelist

Dated:  April 20, 2010

 

 

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