Mohegan Tribal Gaming Authority d/b/a Mohegan Sun v. Domainstand.com LLC
Claim Number: FA1004001316792
Complainant is Mohegan Tribal Gaming Authority d/b/a Mohegan
Sun (“Complainant”), represented by Kimberly S. Doubleday,
REGISTRAR
The domain name at issue is <mohegansuncasino.info>, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On April
5, 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@mohegansuncasino.info by email. Also on
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 "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.info> domain name is confusingly similar to Complainant’s MOHEGAN SUN mark.
2. Respondent does not have any rights or legitimate interests in the <mohegansuncasino.info> domain name.
3. Respondent registered and used the <mohegansuncasino.info> 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 owner and operator of casino facilities and services as well as
being a distributor of clothing, beverage containers, and entertainment services
under the MOHEGAN SUN mark. 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
Respondent registered the <mohegansuncasino.info>
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 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
Respondent’s <mohegansuncasino.info>
domain name contains Complainant’s MOHEGAN
The Panel finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(i).
Complainant has alleged that Respondent does not have rights or legitimate interests in the <mohegansuncasino.info> 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 <mohegansuncasino.info> 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 American 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 the <mohegansuncasino.info>
domain name nor licensed to register the disputed domain name under
Complainant’s mark. The WHOIS
information does not indicate that Respondent is commonly known by the disputed
domain name, and Respondent offers no evidence to indicate that it is commonly
known by the disputed domain name.
Therefore, pursuant to Policy ¶ 4(c)(ii), the
Panel finds that Respondent lacks rights and legitimate interests in the <mohegansuncasino.info> domain
name. 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 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).
Complainant further argues that Respondent’s use of the disputed domain name to redirect Internet users to a website that displays various third-party links to businesses unrelated to Complainant is further evidence that Respondent lacks rights and legitimate interests in the <mohegansuncasino.info> domain name. The Panel finds that Respondent’s diversion of Internet users to a directory website displaying third-party links that are unrelated to 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 Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name).
The Panel finds that Complainant has satisfied the
requirements of Policy ¶ 4(a)(ii).
Registration and
Use in Bad Faith
Complainant argues that Respondent’s use of the disputed domain name to redirect Internet users to a directory website where it presumably collects referral fees associated with the third-party links displayed on Respondent’s website is evidence of registration and use in bad faith. The Panel finds that Respondent is attempting to intentionally attract Internet users to its website by using the confusingly similar <mohegansuncasino.info> domain name where it presumably benefits commercially from referral fees is evidence that Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); 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 Complainant has satisfied the requirements of 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 <mohegansuncasino.info> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: May 10, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum