Mohegan Tribal Gaming Authority d/b/a Mohegan Sun v. Hemang Infrasructure Private Limited
Claim Number: FA1004001316787
Complainant is Mohegan Tribal Gaming Authority d/b/a Mohegan
Sun (“Complainant”), represented by Kimberly S. Doubleday,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <mohegansunarena.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 1, 2010.
On April 5, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <mohegansunarena.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com 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 April 6, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 26, 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@mohegansunarena.com. Also on April 6, 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 May 13. 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <mohegansunarena.com> domain name is confusingly similar to Complainant’s MOHEGAN SUN mark.
2. Respondent does not have any rights or legitimate interests in the <mohegansunarena.com> domain name.
3. Respondent registered and used the <mohegansunarena.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Mohegan Tribal Gaming Authority d/b/a Mohegan Sun, is the provider of casino facilities and services, including the Mohegan Sun Arena, clothing, beverage containers, and ticket reservation and booking services. Complainant owns a trademark registration with United States Patent and Trademark Office (“USPTO”) for its MOHEGAN SUN mark (Reg. No. 2,364,210 issued on July 4, 2000).
Respondent, Hemang Infrastructure Private, registered the <mohegansunarena.com> domain name on September 6, 2001. Respondent’s disputed domain name resolves to a website that displays third-party links and pop-up advertisements under Complainant’s mark for commercial ticket and online reservation businesses, some of which are in competition with Complainant.
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 established rights in
its MOHEGAN SUN mark under Policy ¶ 4(a)(i) through its trademark registration
with the USPTO (Reg. No. 2,364,210 issued on July 4, 2000). See Expedia, Inc. v. Tan, FA 991075
(Nat. Arb. Forum June 29, 2007)
(“As the [complainant’s] mark is registered with the USPTO, [the] complainant
has met the requirements of Policy ¶ 4(a)(i).”); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding
that it is irrelevant whether the complainant has registered its trademark in
the country of the respondent’s residence); see also KCTS Television Inc.
v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding
that it does not matter for the purpose of paragraph 4(a)(i) of the Policy
whether the complainant’s mark is registered in a country other than that of
the respondent’s place of business).
Complainant contends that Respondent’s <mohegansunarena.com> domain name is confusingly similar to its MOHEGAN SUN mark. Complainant notes that the disputed domain name contains its mark in its entirety while deleting the space between the words of Complainant’s mark. Complainant further contends that the disputed domain name adds the descriptive term “arena” and the generic top-level domain (“gTLD”) “.com” and that these changes to its mark are not sufficient to distinguish the disputed domain name from its mark. Complainant points out that within its casino operations there is an arena that Complainant markets as a venue of entertainment, sporting and cultural events thus adding to the confusing similarity of the disputed domain name. The Panel finds that Respondent’s <mohegansunarena.com> domain name is confusingly similar to Complainant’s MOHEGAN SUN mark under Policy ¶ 4(a)(i). See 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 Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <mohegansunarena.com> domain name. Complainant is required to produce a prima facie case in support of its allegations and then the burden shifts to Respondent to prove it possesses rights or legitimate interests in the disputed domain name. The Panel finds Complainant has adequately established a prima facie case. Due to Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not possess rights or legitimate interests in the disputed domain name. The Panel, however, will examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 2, 2002) (“Because Complainant’s submissions constitute 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 right or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Am. Express Co. v. Fan Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent’s failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”).
Complainant contends that Respondent is neither commonly known by nor licensed to register the disputed domain name under Complainant’s mark. The Panel finds that the WHOIS information, which identifies “Hemang Infrastructure Private Limited” as the registrant of the disputed domain name, demonstrates that Respondent is not commonly know by the disputed domain name. Therefore, pursuant to Policy ¶ 4(c)(ii), the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name. See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly know 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 where the respondent was commonly know by the domain names in dispute); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvavations.com>] domain name.”).
Respondent’s disputed domain name resolves to a website that displays various third-party links to event and hotel reservation companies. Complainant argues that this type of use is not in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Panel finds that Respondent’s use of the <mohegansunarena.com> domain name to divert Internet users to its website that displays third-party links other commercial websites, some of which are in competition with Complainant, is not a use in connection with 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 Hewlett-Packard Co. v. Collazo, FA 144628 (Nat. Arb. Forum Mar. 5, 2003) (holding that the respondent’s use of the <hpcanada.com> domain name to post links to commercial websites and subject Internet users to pop-up advertisements was not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges that Respondent’s use of the disputed
domain name to divert Internet users to the websites of Complainant’s
competitors’ results in a loss of business and revenue. Complainant further alleges that this type of
use is evidence of bad faith registration and use of the disputed domain name. The Panel finds that Respondent’s use of the
disputed domain to divert Internet users to the commercial websites of
Complainant’s competitors is evidence of bad faith registration and use under
Policy ¶ 4(b)(iii).
See Am. Online, Inc. v. Tapia, FA 328159 (Nat. Arb. Forum Dec.
1, 2004) (“Respondent is referring Internet traffic that seeks out the <aol.tv> domain name to a competitor’s news
site. The Panel strongly finds that
appropriating Complainant’s mark to refer customers seeking Complainant to
Complainant’s competitors is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iii).”); see
also
Complainant also argues that Respondent is using the confusingly similar domain name to intentionally attract Internet users to its website where it presumably profits from click-through and affiliate fees associated with the third-party links displayed thereon. The Panel finds that Respondent’s use of the <mohegansunarena.com> domain name to intentionally attract Internet users to its website for financial gain is further evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
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 <mohegansunarena.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: May 12, 2010
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