Caesars Interactive Entertainment, Inc. v. Traffic Label Limited
Claim Number: FA1111001414728
Complainant is Caesars Interactive Entertainment, Inc. (“Complainant”), represented by Nadya Munasifi Sand of Alston & Bird, LLP, Georgia, USA. Respondent is Traffic Label Limited (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chinaseriesofpoker.com>, registered with GoDaddy.com, Inc.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 8, 2011; the National Arbitration Forum received payment on November 8, 2011.
On November 9, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <chinaseriesofpoker.com> domain name is registered with GoDaddy.com, Inc. and that 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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 9, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 29, 2011 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@chinaseriesofpoker.com. Also on November 9, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 December 8, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <chinaseriesofpoker.com> domain name is confusingly similar to Complainant’s WORLD SERIES OF POKER mark.
2. Respondent does not have any rights or legitimate interests in the <chinaseriesofpoker.com> domain name.
3. Respondent registered and used the <chinaseriesofpoker.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Caesars Interactive Entertainment, Inc., is the owner and operator of the WORLD SERIES OF POKER. Complainant began operating the WORLD SERIES OF POKER in 1970. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its WORLD SERIES OF POKER mark (e.g., Reg. No. 1,025,395 registered November 18, 1975).
Respondent, Traffic Label Limited, registered the <chinaseriesofpoker.com> domain name on January 23, 2008. The disputed domain name resolves to a website that provides information about Chinese poker and hyperlinks to third-party websites that offer poker services that compete with Complainant’s poker offerings.
Respondent was a respondent in previous UDRP proceedings in which the disputed domain names were transferred to their respective complainants. See Stanworth Dev. Ltd. v. Traffic Label Ltd., D2011-0683 (WIPO June 20, 2011); see also Microgaming Software Sys. Ltd. v. Traffic Label Ltd., D2009-0261 (WIPO Aug. 29, 2009); see also La Societe des Bains de Mer et du cercle des etrangers a Monaco v. Traffic Label Ltd., D2008-1388 (WIPO Nov. 12, 2008); see also ACCOR v. Traffic Label Ltd., D2008-1240 (WIPO Oct. 2, 2008).
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 owns multiple trademark registrations with the USPTO for its WORLD SERIES OF POKER mark (e.g., Reg. No. 1,025,395 registered November 18, 1975). The Panel deems these registrations sufficient to establish Complainant’s rights in Complainant’s WORLD SERIES OF POKER mark pursuant to Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
In Respondent’s <chinaseriesofpoker.com> domain name, Respondent removes the spaces and the term “WORLD” from Complainant’s mark and adds the geographic term “china” and the generic top-level domain (“gTLD”) “.com.” The Panel determines these alterations fail to sufficiently distinguish the disputed domain name. See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (holding that “the Domain Name is confusingly similar to Complainant’s ‘TESCO PERSONAL FINANCE’ mark in that it merely omits the descriptive term ‘personal.’”); see also Ticketmaster Corp. v. Kumar, FA 744436 (Nat. Arb. Forum Aug. 17, 2006) (finding that the <indiaticketmaster.com> domain name was confusingly similar to the complainant’s TICKETMASTER mark); 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.”). Therefore, the Panel holds that Respondent’s <chinaseriesofpoker.com> domain name is confusingly similar to Complainant’s WORLD SERIES OF POKER mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Complainant satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <chinaseriesofpoker.com> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <chinaseriesofpoker.com> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); 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.”).
Complainant disavows any connection between itself and Respondent, asserting that Complainant did not license, or consent to, Respondent’s use of Complainant’s mark in a domain name. The WHOIS information identifies “Traffic Label Limited” as the registrant of the disputed domain name. Respondent does not rebut any of this evidence because Respondent failed to respond to this case. Thus, the Panel concludes that Respondent is not commonly known by the <chinaseriesofpoker.com> 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).
Respondent’s <chinaseriesofpoker.com> domain name resolves to a website entitled “China Series of Poker.” The resolving website purports to offer information about Chinese poker and contains hyperlinks to third-party providers of poker and poker-related products and services that compete with the products and services offered by Complainant. Respondent presumably profits from these hyperlinks by receiving click-through fees. Based on this evidence, the Panel holds that Respondent is making neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the <chinaseriesofpoker.com> domain name pursuant to Policy ¶ 4(c)(iii). See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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 also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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)).
The Panel finds Complainant satisfied Policy ¶ 4(a)(ii).
Respondent was a respondent in previous UDRP proceedings in which the disputed domain names were transferred to their respective complainants. See Stanworth Dev. Ltd. v. Traffic Label Ltd., D2011-0683 (WIPO June 20, 2011); see also Microgaming Software Sys. Ltd. v. Traffic Label Ltd., D2009-0261 (WIPO Aug. 29, 2009); see also La Societe des Bains de Mer et du cercle des etrangers a Monaco v. Traffic Label Ltd., D2008-1388 (WIPO Nov. 12, 2008); see also ACCOR v. Traffic Label Ltd., D2008-1240 (WIPO Oct. 2, 2008). Consequently, the Panel concludes Respondent’s registration of the <chinaseriesofpoker.com> domain name is a part of Respondent’s pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also Arai Helmet Americas, Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005) (finding that “Respondent has registered the disputed domain name, <aria.com>, to prevent Complainant from registering it” and taking notice of another UDRP proceeding against the respondent to find that “this is part of a pattern of such registrations”).
The Panel infers that Complainant’s business is disrupted in some way by Respondent’s hosting of competing hyperlinks. Consequently, the Panel deems Respondent’s registration and use of the <chinaseriesofpoker.com> domain name to be in bad faith pursuant to 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).
The Panel further presumes that Respondent commercially benefits from the hyperlinks found on the resolving website by receiving click-through fees each time an Internet user clicks on one of the hyperlinks. As Respondent is using a confusingly similar disputed domain name and provides information about poker, the Panel determines Internet users may become confused as to Complainant’s affiliation with the resolving website. The Panel concludes that Respondent is attempting to commercially benefit from Internet users’ confusion as to Complainant’s affiliation with the domain name. Thus, the Panel finds Respondent registered and uses the <chinaseriesofpoker.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
Complainant also contends that Respondent could not have registered and used the disputed domain name without actual or constructive knowledge of Complainant and its rights in the WORLD SERIES OF POKER mark. While constructive notice has not been generally held to suffice for a finding of bad faith registration and use, the Panel nonetheless finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii) because the Panel agrees with Complainant and finds that Respondent had actual notice of Complainant’s trademark rights. See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Nat. Arb. Forum Apr. 10, 2006) (stating that while mere constructive knowledge is insufficient to support a finding of bad faith, where the circumstances indicate that the respondent had actual knowledge of the complainant’s mark when it registered the domain name, panels can find bad faith); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
The Panel finds Complainant satisfied 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 <chinaseriesofpoker.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: December 16, 2011
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