Mohegan Tribal Gaming Authority d/b/a Mohegan Sun v. Private Whois Service c/o mohegansuncasino.com
Claim Number: FA1004001316789
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 <mohegansuncasino.com>,
registered with Internet.bs Corp.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 1, 2010.
On April 4, 2010, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <mohegansuncasino.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 8, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 28, 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@mohegansuncasino.com. Also on April 8, 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 3, 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 (the "Rules") "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 <mohegansuncasino.com> domain name is confusingly similar to Complainant’s MOHEGAN SUN mark.
2. Respondent does not have any rights or legitimate interests in the <mohegansuncasino.com> domain name.
3. Respondent registered and used the <mohegansuncasino.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant operates a casino at the Mohegan Sun facility, which is commonly known as the “Mohegan Sun casino.” Complainant also holds trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the MOHEGAN SUN mark (e.g., Reg. No. 2,364,210 registered on July 4, 2000).
Respondent registered the <mohegansuncasino.com> domain name on January 5, 2004. The disputed domain name resolves to a website that provides links to third-party websites, some of which directly compete with Complainant’s business.
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.
Complainant asserts rights in the MOHEGAN SUN mark through the registration of this mark with the USPTO (e.g., Reg. No. 2,364,210 registered on July 4, 2000). The Panel finds this registration with the USPTO sufficiently establishes Complainant’s rights in the MOHEGAN SUN mark under Policy ¶ 4(a)(i). See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); 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).
Complainant alleges Respondent’s disputed <mohegansuncasino.com>
domain name is confusingly similar to its mark.
Respondent incorporates Complainant’s mark in its entirety in the
disputed domain name. Respondent then
adds the term “casino,” which describes the type of business Complainant
operates, and the generic top-level domain (“gTLD”) “.com” to Complainant’s
mark in the disputed domain name. The
Panel finds these slight alterations do not distinguish Respondent’s disputed
domain name from Complainant’s mark.
Therefore, the Panel finds Respondent’s <mohegansuncasino.com>
domain name is confusingly similar to Complainant’s MOHEGAN SUN mark under
Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298
(eResolution Sept. 22, 2000) (finding confusing similarity where the
respondent’s domain name combines the complainant’s mark with a generic term
that has an obvious relationship to the complainant’s business); 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 Jerry Damson, Inc. v.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case showing Respondent lacks rights or legitimate interests in the <mohegansuncasino.com> domain name. Respondent then has the burden to prove it has rights or legitimate interests in the disputed domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Am. Express Co. v. Fang 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.”). Although Respondent failed to submit a response, the Panel will evaluate the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant claims it is not affiliated with Respondent nor is Respondent authorized to use Complainant’s mark in a domain name. The WHOIS information does not indicate that Respondent is commonly known by the disputed domain name. Without evidence to the contrary, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
In addition, Respondent’s disputed domain name resolves to a
website that provides links to websites that compete with Complainant’s business,
including websites of other casinos.
Respondent most likely profits from this use of the disputed domain name
through the receipt of pay-per-click fees.
The Panel finds Respondent’s use of the disputed domain name does not
constitute a bona fide offering of
goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair
use under Policy ¶ 4(c)(iii). See 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); see also Jerry Damson, Inc. v.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds Respondent’s use of the disputed <mohegansuncasino.com> domain name to redirect Internet users to third-party websites, including websites of Complainant’s competitors, disrupts Complainant’s business and constitutes registration and use in bad faith under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Furthermore, Complainant argues Respondent is attempting to
use the disputed domain name to intentionally attract, for commercial gain,
Internet users to its pay-per-click website by creating a likelihood of
confusion with Complainant and its MOHEGAN SUN mark as to the source,
sponsorship, affiliation, or endorsement of the site. As previously discussed, Respondent
presumably profits from the receipt of pay-per-click fees through its use of
the <mohegansuncasino.com> domain name. The Panel finds Respondent’s use of the
disputed domain name constitutes bad faith registration and use under Policy ¶
4(b)(iv). See 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)); see also The Ass’n of Junior Leagues
Int’l Inc. v. This Domain Name My Be For
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
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 <mohegansuncasino.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: May 12, 2010
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