Mohegan Tribal Gaming Authority d/b/a Mohegan Sun v. Gerard Brady
Claim Number: FA1004001316793
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.net>, registered with Moniker.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 1, 2010.
On April 2, 2010, Moniker confirmed by e-mail to the National Arbitration Forum that the <mohegansuncasino.net> domain name is registered with Moniker and that Respondent is the current registrant of the name. Moniker has verified that Respondent is bound by the Moniker 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 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.net by email. Also on April 5, 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 28, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <mohegansuncasino.net> domain name is confusingly similar to Complainant’s MOHEGAN SUN mark.
2. Respondent does not have any rights or legitimate interests in the <mohegansuncasino.net> domain name.
3. Respondent registered and used the <mohegansuncasino.net> 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 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 July 4, 2000).
Respondent, Gerard Brady, registered the <mohegansuncasino.net> domain name on September 7, 2006. Respondent’s disputed domain name resolves to a “sponsored listings” website that displays various third-party links to businesses unrelated to 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).
Respondent’s <mohegansuncasino.net>
domain name contains Complainant’s MOHEGAN SUN mark while, (1) deleting the
space between the words of the mark, (2) adding the descriptive term “casino” and
(3) adding the generic top-level domain (“gTLD”) “.net.” Complainant argues that these changes are not
sufficient to distinguish the disputed domain name from its mark. The Panel agrees and finds that Respondent’s
disputed domain name is confusingly similar to Complainant’s mark under Policy
¶ 4(a)(i) where it contains Complainant’s mark
entirely and merely adds a term that describes Complainant’s business and
includes the gTLD “.net.” See Whitney Nat’l Bank v. Easynet Ltd, FA
944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an
obvious relationship to Complainant’s business and a gTLD renders the disputed
domain name confusingly similar to Complainant’s mark pursuant to Policy ¶
4(a)(i).”); 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.”); 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.
Complainant alleges that Respondent does not have any rights or legitimate interests in the <mohegansuncasino.net> domain name. Complainant is required to make a prima facie case in support of these allegations. Once the Complainant has produced a prima facie case the burden shifts to the Respondent to show it does have rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). 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 Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”). The Panel finds that the Complainant has produced a prima facie case. Due to the Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not have any rights or legitimate interests in the disputed domain name. See 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.”); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). However, the Panel elects to review the record in consideration of the elements of Policy ¶ 4(c).
Complaint argues that Respondent is neither commonly known by the <mohegansuncasino.net> domain name, nor has Complainant given Respondent permission to use Complainant’s mark. The WHOIS information for the disputed domain name identifies “Gerard Brady” as the registrant, and there is no further evidence on record that Respondent is commonly known by the disputed domain name. The Panel finds that without affirmative evidence of Respondent being commonly known by the disputed domain name, Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also 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).
Complainant further argues that Respondent is using the <mohegansuncasino.net> domain name to divert Internet users to a website that displays third-party links that are unrelated to Complainant’s business. Complainant contends that Respondent recieves click-through fees associated with the links it displays on its website. The Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommerical or fair use under Policy ¶ 4(c)(iii) where it maintains a website that merely displays third-party links to other commerical websites and where Respondent presumably collects referal fees for those links. 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 Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant argues that Respondent’s use of the disputed
domain name to redirect Internet users to a website containing various
third-party links where Respondent presumably collects referral fees associated
with those links is evidence that Respondent registered and used the disputed
domain name in bad faith. The Panel
finds that Respondent’s use of the <mohegansuncasino.net>
domain name to create a likelihood of confusion as to the affiliation of the
website in order to intentionally attract Internet users to its website where
it presumably benefits commercially from referral fees associated with the
third-party links thereon is evidence that Respondent registered and used the
disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See
The Ass’n of Junior Leagues Int’l Inc. v. This Domain Name May Be For
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.net> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: May 12, 2010
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