Mohegan Tribal Gaming Authority d/b/a Mohegan Sun v. Anthony Prall Jr. / Angels Dream Girls
Claim Number: FA1502001606333
Complainant is Mohegan Tribal Gaming Authority d/b/a Mohegan Sun (“Complainant”), Connecticut, USA. Respondent is Anthony Prall Jr. / Angels Dream Girls (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mohegan-sun-outcall.com>, registered with GoDaddy.com, LLC.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 23, 2015; the Forum received payment on February 23, 2015.
On February 25, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <mohegan-sun-outcall.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 March 2, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 23, 2015 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@mohegan-sun-outcall.com. Also on March 2, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On March 31, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 cancelled.
A. Complainant
Complainant contends that it uses the MOHEGAN SUN mark in connection with providing casino facilities and services; clothes, namely t-shirts, sweatshirts, denim shirts, jackets, polo shirts, baseball caps and sweatpants; beverage glassware and paper cups; pens and stationary; cigarette lighters and ashtrays not of precious metal. Complainant has registered the MOHEGAN SUN mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,364,210, registered April 2000), which evinces rights in the mark. The <mohegan-sun-outcall.com> domain name is confusingly similar to the MOHEGAN SUN mark as it fully incorporates the mark while adding hyphens, the generic term “outcall”, and the “.com” generic top-level domain name (“gTLD”).
Complainant further contends that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name or any variant of the MOHEGAN SUN mark. Further, Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent’s <mohegan-sun-outcall.com> domain name resolves to a page featuring photos of Complainant’s casino in an effort to pass itself off as Complainant. Further, Respondent’s website features links to adult material.
Respondent is using the <mohegan-sun-outcall.com> domain name in bad faith. Evidence of this is the resolving page’s attempt to pass itself off as Complainant and the inclusion of various links to adult material, from which Respondent is likely receiving pay-per-click fees
B. Respondent
Respondent failed to submit a Response in this proceeding. The Respondent registered the <mohegan-sun-outcall.com> domain name on August 7, 2011.
As the Respondent has failed to file a response in this matter, the Panel accepts as true Complainant’s reasonable contentions. Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademarks, that the Respondent has no rights or legitimate interests in or to the disputed domain name and that the Respondent has registered and is using the disputed domain name in bad faith.
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."
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.
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.”).
The <mohegan-sun-outcall.com> domain name is confusingly similar to the MOHEGAN SUN mark. The differences between the mark and the domain name include the addition of hyphens between terms, the addition of the generic term “outcall”, and the “.com” gTLD. Past panels have found that adding hyphens to a mark are not persuasive when considering a Policy ¶ 4(a)(i) confusing similarity analysis. See Columbia Sportswear Co. v. Keeler, D2000-0206 (WIPO May 16, 2000) (finding “[t]he use of hyphens ‘columbia-sports-wear-company’ in one of the Respondent's domain names in issue is insufficient to render it different to the trade mark COLUMBIA SPORTSWEAR COMPANY”); see also Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark").
Further, panels have also found the addition of a generic term to a mark and the addition of the gTLD “.com” as insufficient to overcome a finding of confusing similarity. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also AOL Inc. v. Morgan, FA 1349260 (Nat. Arb. Forum Nov. 4, 2010) (concluding that the addition of the generic top-level domain (“gTLD”) “.com” does not distinguish the disputed domain name from the mark).
Therefore, the Panel finds that such alterations to Complainant’s mark not negate the confusingly similar nature of Respondent’s domain name pursuant to Policy ¶ 4(a)(i).
Respondent has no rights or legitimate interests in the disputed domain name. The WHOIS information merely lists “Anthony Prall Jr. / Angels Dream Girls” as registrant of record. As Respondent has not added any evidence for the Panel’s consideration, the Panel finds no basis in the available record to find Respondent commonly known by the <mohegan-sun-outcall.com> domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Next, Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the <mohegan-sun-outcall.com> domain name. The resolving website of the Respondent’s disputed domain name features photos of Complainant’s casino in an attempt to pass Respondent off as Complainant for profit. Panels have found passing off behavior as demonstrating an absence of a bona fide offering of goods or services under Policy ¶ 4(c)(i), and a lack of a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Crow v. LOVEARTH.net, FA 203208 (Nat. Arb. Forum Nov. 28, 2003) (“It is neither a bona fide offerings [sic] of goods or services, nor an example of a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant . . . .”).
Accordingly, the Panel finds that Respondent has not provided a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the <mohegan-sun-outcall.com> domain name.
Further, Respondent apparently includes links on its website to adult-oriented material to presumably profit from click-through fees associated with the links. Panels have found that such use fails to demonstrate rights or legitimate interests in a domain name. See Am. Online, Inc. v. Bates, FA 192595 (Nat. Arb. Forum Oct. 7, 2003) (“Attempts to commercially benefit from a domain name that is confusingly similar to another's mark by linking the domain name to an adult-oriented website [is] evidence that the registrant lacks rights or legitimate interests in the domain name.”).
Therefore, the Panel finds that Respondent’s use of the disputed domain name does not demonstrate that it has rights or legitimate interests in or to the <mohegan-sun-outcall.com> domain name under Policy ¶ 4(a)(ii).
Respondent’s use of the <mohegan-sun-outcall.com> domain name constitutes a violation of Policy ¶ 4(b)(iv) attraction for commercial gain as Respondent is accused of passing itself off as Complainant and linking websites containing adult-oriented material to the disputed domain name in an attempt to receive click-through fees. Past panels have found such use to be a demonstration of bad faith under Policy ¶ 4(b)(iv). See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also 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).”). The Respondent’s use of the disputed domain name includes links to third party websites to presumably achieve financial reward while passing itself of as Complainant. Thi is evidence of bad faith attraction for commercial gain per Policy ¶ 4(b)(iv).
Finally, Panels have found where a disputed domain name includes links to adult-oriented material from a confusingly similar domain name, a finding of bad faith under Policy ¶ 4(a)(iii) is reasonable. See Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith); see also Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (“[W]hatever the motivation of Respondent, the diversion of the domain name to [an adult-oriented] site is itself certainly consistent with the finding that the Domain Name was registered and is being used in bad faith.”).
Therefore, the Panel finds that Respondent registered and used the <mohegan-sun-outcall.com> domain name in an attempt to divert Internet users to websites containing adult-oriented material in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <mohegan-sun-outcall.com> domain name cancelled.
Kenneth L. Port, Panelist
Dated: April 1, 2015
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