Mohegan Tribal Gaming Authority d/b/a Mohegan Sun v. John Syragakis
Claim Number: FA1004001316800
Complainant is Mohegan Tribal Gaming Authority d/b/a Mohegan
Sun, represented by Kimberly S. Doubleday, (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <visitmohegansun.com>, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 1, 2010.
On April 1, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <visitmohegansun.com> domain name is registered with Godaddy.com, Inc. and that the Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. 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 12, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 3, 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 email@example.com by e-mail. Also on April 12, 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.
A timely Response was received and determined to be complete on May 13, 2010.
On May 24, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant uses its trademark MOHEGAN SUN for casino facilities and services and various other goods and services. The mark has been registered on the Principal Register of the U.S. Patent and Trademark Office since 2000 (registration number 2,364,210).
Complainant contends that the disputed domain name, <visitmohegansun.com>, is confusingly similar to Complainant’s MOHEGAN SUN mark. Complainant further contends that Respondent lacks rights or legitimate interests in the domain name because Respondent’s website (to which the domain name resolves) misleadingly diverts consumers to various third-party commercial websites, potentially tarnishing Complainant’s mark, and Respondent is not using the domain name for a bona fide offering of goods or services. Complainant alleges that Respondent has intentionally attempted to attract Internet users to Respondent’s website for commercial gain by creating a likelihood of confusion with Complainant’s mark, and accuses Respondent of seeking to obtain personal information from consumers, and contends on this basis that Respondent has registered and is using the domain name in bad faith.
Respondent contends that Mohegan Sun is considered another country, and therefore the disputed domain name is not identical or similar to a mark in which Complainant has rights. Respondent disputes Complainant’s contention regarding rights or legitimate interests, asserting that Respondent’s intention is to help Complainant rather than to sell goods or services. Finally, Respondent disputes the allegations of bad faith, stating that Respondent’s website contains a link to Complainant’s site, that Respondent has not tried to gain business for any third parties, and that Respondent desires to work with and support Complainant. In particular, Respondent states that while his website does link to a hotel (which apparently is operated by Respondent), the purpose of this link is to promote business for Complainant, as this is the only area hotel that has a shuttle service to Complainant’s casino.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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 disputed domain name incorporates Complainant’s registered mark in full, appending only the word “visit” and the top-level domain suffix. Respondent’s argument apparently is that Complainant lacks trademark rights because the term “Mohegan Sun” refers to a country. However, Respondent has not supported this claim with evidence, and it appears to the Panel that the phrase “Mohegan Sun” refers to a casino operated by the Mohegan Tribal Gaming Authority rather than a country or other geographic location. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Complainant having made out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name, the burden of production shifts to Respondent to come forward with concrete evidence of such rights or interests. See, e.g., America Online, Inc. v. Thricovil, FA 638077 (Nat. Arb. Forum Mar. 22, 2006). Respondent has not met this burden. To the contrary, Respondent concedes he is not engaged in an offering of goods or services, and the only basis in Paragraph 4(c) of the Policy that might possibly support Respondent’s position is legitimate noncommercial or fair use, as described in Paragraph 4(c)(iii). Yet Respondent offers no evidence to support a claim of noncommercial or fair use, and concedes that he is using the domain name to promote his hotel, which is located near Complainant’s casino. The Panel therefore finds that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent registered and is using a domain name that incorporates Complainant’s mark. Respondent claims that his purpose has been to assist Complainant, but offers the Panel no reason to believe that Respondent’s motives are or ever have been altruistic. To the contrary, Respondent’s current use of the domain name includes a prominent link to Respondent’s own hotel. In the Panel’s view, Respondent is using the domain name to attract Internet users for commercial gain by creating a likelihood of confusion with Complainant’s mark. As there is no evidence that Respondent’s intent was any different at the time the domain name was originally registered, the Panel concludes that the domain name was registered and is being used in bad faith.
Having considered all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <visitmohegansun.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 3, 2010
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