Harrah's License Company, LLC v. BP Investments
Claim Number: FA0808001218922
Complainant is Harrah's License Company, LLC (“Complainant”), represented by Jessica
E. Jacob, of Alston & Bird, LLP, Georgia,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <chesterharrahs.com> and <harrahschester.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 August 4, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 5, 2008.
On August 5, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <chesterharrahs.com> and <harrahschester.com> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. 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 August
7, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of August
27, 2008
by which Respondent could file a response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent's registration as technical, administrative and billing contacts,
and to postmaster@chesterharrahs.com and
postmaster@harrahschester.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 4, 2008, 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." 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <chesterharrahs.com> and <harrahschester.com> domain names are confusingly similar to Complainant’s HARRAH’S mark.
2. Respondent does not have any rights or legitimate interests in the <chesterharrahs.com> and <harrahschester.com> domain names.
3. Respondent registered and used the <chesterharrahs.com> and <harrahschester.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Harrah’s Licensing Company, LLC, is a wholly-owned
subsidiary of Harrah’s Operating Company, Inc., which operates thirty-eight
casinos in three countries. One of the
casinos Complainant owns is in
Respondent, BP Investments, registered the <harrahschester.com> domain name on June 1, 2005, and the <chesterharrahs.com> domain name
on August 19, 2006. The disputed domain
names previously resolved to websites providing links promoting a variety of
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.
As a preliminary matter, the Panel notes that Complainant’s trademark registrations for the HARRAH’S mark establish Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”); see also Diners Club Int’l Ltd. v. Rulator Corp., FA 967678 (Nat. Arb. Forum June 5, 2007) (conferring rights in the DINERS mark to the complainant based upon its USPTO trademark registration).
Respondent’s <chesterharrahs.com> and <harrahschester.com>
domain names contain Complainant’s HARRAH’S mark without the apostrophe and add
the geographic identifier “
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant alleges that Respondent does not have rights or legitimate interests in the <chesterharrahs.com> and <harrahschester.com> domain names. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also 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).
According to Complainant, Respondent has no connection or affiliation with Complainant, and is not licensed or authorized to use the HARRAH’S mark in any manner. This assertion combined with the WHOIS information identifying Respondent as “BP Investments” leads the Panel to conclude that Respondent is not commonly known by the <chesterharrahs.com> and <harrahschester.com> domain names 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 previously used the <chesterharrahs.com> and <harrahschester.com> domain
names to display a list of links promoting competing
Respondent’s current non-use of the <chesterharrahs.com> and <harrahschester.com> domain names also does not amount to 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 George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (finding that a respondent had no rights or legitimate interests in a confusingly similar domain name where it had failed to use it).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent’s previous use of the <chesterharrahs.com> and <harrahschester.com> domain
names had a propensity to disrupt Complainant’s business by diverting Internet
users to the websites of Complainant’s competitors. This evidences bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat.
Arb. Forum Feb. 13, 2007) (finding that the respondent registered and
used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) when
the disputed domain name resolved to a website that displayed commercial links
to the websites of the complainant’s competitors in the financial services
industry); 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).
Complainant also alleges that Respondent registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv) by attracting Internet users to Respondent’s website by creating a likelihood of confusion for Respondent’s own commercial gain. The Panel agrees, and believes that Respondent attempted to profit off the goodwill associated with Complainant’s HARRAH’S mark by giving the impression that Complainant was associated or affiliated with the <chesterharrahs.com> and <harrahschester.com> domain names and resolving websites. The Panel therefore concludes that Respondent’s registration and use constituted bad faith pursuant to Policy ¶ 4(b)(iv). See 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); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because Respondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”).
Respondent’s current inactive use of the <chesterharrahs.com> and <harrahschester.com>
domain names also demonstrates bad faith registration and use pursuant to
Policy ¶ 4(a)(iii).
See Clerical Med. Inv. Group Ltd.
v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that
merely holding an infringing domain name without active use can constitute use
in bad faith); see also DCI
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chesterharrahs.com> and <harrahschester.com> domain names be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: September 18, 2008
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