Mohegan Tribal Gaming Authority d/b/a Mohegan Sun v. absolute entertainment
Claim Number: FA1004001316802
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 <mohegansuncasinostrippers.com>, registered with Godaddy.com, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically April 1, 2010.
On April 2, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <mohegansuncasinostrippers.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and thereby has 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 13, 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 postmaster@mohegansuncasinostrippers.com. Also on April 13, 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 10, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson sits as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <mohegansuncasinostrippers.com>, is confusingly similar to Complainant’s MOHEGAN SUN mark.
2. Respondent has no rights to or legitimate interests in the <mohegansuncasinostrippers.com> domain name.
3. Respondent registered and used the <mohegansuncasinostrippers.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, registered its MOHEGAN SUN mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,364,210 issued July 4, 2000). Complainant uses the mark in connection with providing casino facilities and services, including ticket reservation and booking services for casino gaming. Complainant offers its services at its official website resolving from the <mohegansun.com> domain name.
Respondent, absolute entertainment, registered the disputed domain name March 3, 2009. The disputed domain name resolves to a website providing services unrelated to those provided by Complainant. Respondent also uses the disputed domain name to gain personal information from Internet users attempting to purchase Complainant’s services.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 alleges that it established rights in its MOHEGAN SUN mark through the registration of this mark with the USPTO (Reg. No. 2,364,210 issued July 4, 2000). The Panel finds that this registration establishes Complainant’s rights in the MOHEGAN SUN mark pursuant to Policy ¶ 4(a)(i). See SDC Media, Inc. v. SCMedia, FA 960250 (Nat. Arb. Forum June 7, 2007) (holding that “[t]his trademark registration [with the USPTO] establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also 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).”).
Complainant argues that Respondent’s disputed domain name is confusingly similar to its MOHEGAN SUN mark. The disputed domain name incorporates Complainant’s mark in its entirety, removes the space between words of Complainant’s mark, adds a descriptive term related to Complainant’s business (“casino”), adds a generic term (“strippers”), and adds the generic top-level domain “.com.” The Panel finds that these additions and minor alterations to Complainant’s mark do not sufficiently distinguish the <mohegansuncasinostrippers.com> domain name from Complainant’s MOHEGAN SUN mark.
The Panel, therefore, finds that Respondent’s disputed
domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶
4(a)(i). See Diesel
v. LMN, FA 804924 (Nat. Arb. Forum Nov. 7, 2006) (finding that “simply
eliminat[ing] the space between terms and add[ing] the generic top-level domain
(“gTLD”) ‘.com’ … [is] insufficient to differentiate the disputed domain name
from Complainant’s VIN DIESEL mark under Policy ¶ 4(a)(i)”); see
also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the
words of Complainant’s mark, as well as the addition of a gTLD does not
sufficiently distinguish the disputed domain name from the mark pursuant to
Policy ¶ 4(a)(i).”); see also Warner
Bros. Entm’t Inc. v. Sadler, FA 250236 (Nat. Arb. Forum May 19, 2004)
(finding the addition of generic terms to Complainant’s HARRY POTTER mark in
the respondent’s <shop4harrypotter.com> and
<shopforharrypotter.com> domain names failed to alleviate the confusing
similarity between the mark and the domain names); see also Experian Info. Solutions, Inc. v. Credit Research, Inc.,
D2002-0095 (WIPO May 7, 2002) (finding that several domain names incorporating
the complainant’s entire EXPERIAN mark and merely adding the term “credit” were
confusingly similar to the complainant’s mark).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Pursuant to Policy ¶ 4(a)(ii), Complainant must make a prima facia case showing that Respondent lacks rights or legitimate interests in the disputed domain name. The burden of proof then shifts to Respondent to prove that it does have rights or legitimate interests in the <mohegansuncasinostrippers.com> domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Although Respondent failed to respond, the Panel nonetheless still examines the record to determine whether the evidence suggests that Respondent has any rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant asserts that it has not authorized or licensed Respondent to use the MOHEGAN SUN mark. The WHOIS information for the disputed domain name lists “absolute entertainment”as the domain name registrant, which is evidence that Respondent is not commonly known by the <mohegansuncasinostrippers.com> domain name. Furthermore, Respondent has not offered any evidence to suggest that Policy ¶ 4(c)(ii) applies in this case. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was 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 asserts that Respondent’s <mohegansuncasinostrippers.com> domain
name resolves to a website offering services unrelated to Complainant. The
Panel finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i) and that it is not a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See The
Complainant also alleges that Respondent’s disputed domain name resolves to a website that defrauds Internet users by alleging to provide services to gain personal information for presumed fraudulent behavior. The Panel finds that “phishing” for personal information does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it does not constitute a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (defining “phishing” as fooling “Internet users into sharing personal financial data so that identities can be stolen, fraudulent bills are run up, and spam e-mail is sent”); see also Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
The Panel finds that Respondent has no rights or interests in the disputed domain name; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant alleges that Respondent’s <mohegansuncasinostrippers.com> domain name resolves to a website offering services unrelated to Complainant. Complainant contends that Internet users may become confused as to Complainant’s sponsorship or affiliation with the disputed domain name and resolving website. Complainant contends that Respondent likely profits from this confusion. Therefore, the Panel finds that Respondent’s use of the disputed domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
Complainant asserts that Respondent is using the confusingly
similar <mohegansuncasinostrippers.com>
domain name to intentionally attract Internet users to its website in
order to “phish” for users’ personal information. This creates a strong
likelihood of confusion with Complainant’s MOHEGAN SUN mark. The Panel presumes
that Respondent then profits by using such information for fraudulent purposes.
Thus, the Panel finds that Respondent’s use of the disputed domain name and the
information gleaned thereby supports findings of bad faith registration and use
under Policy ¶ 4(a)(iii). See Wells Fargo & Co. v.
The Panel finds that Respondent acted in bad faith in registering and using the disputed domain name; Complainant satisfied the elements of ICANN 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 <mohegansuncasinostrippers.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: May 20, 2010.
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