MGM Resorts International v. DARRIN STOCK
Claim Number: FA1507001630766
Complainant is MGM Resorts International (“Complainant”), represented by CSC Digital Brand Services AB, Sweden. Respondent is DARRIN STOCK (“Respondent”), Alabama, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mgmpark.com>, registered with eNom, Inc.
The undersigned certifies that she 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 Forum electronically July 27, 2015; the Forum received payment July 27, 2015.
On July 29, 2015, eNom, Inc. confirmed by e-mail to the Forum that the <mgmpark.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. verified that Respondent is bound by the eNom, Inc. registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 30, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 19, 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@mgmpark.com. Also on July 30, 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 August 21, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 transferred from Respondent to Complainant.
Complainant’s Contentions in this Proceeding:
Complainant is one of the world’s leading global hospitality companies, operating a peerless portfolio of destination resort brands, including Bellagio, MGM Grand, Mandalay Bay, and The Mirage. Complainant recently announced the development of “The Park” which will be a unique dynamic outdoor park, dining, and entertainment district located between its New York, New York and Monte Carlo resorts in Las Vegas, Nevada, and is scheduled to open in 2016. The Panel is directed to Attached Exhibit E for articles regarding this project. Complainant registered the MGM mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,060,489, registered March 1, 1977), which demonstrates Complainant’s rights in its mark. Attached Exhibit A contains copies of Complainant’s USPTO registrations. The <mgmpark.com> domain name is confusingly similar to Complainant’s mark as it contains Complainant’s MGM trademark, the generic top-level domain (“gTLD”) “.com,” and the descriptive term “park.”
Respondent has no rights or legitimate interest in the disputed domain name. First, Respondent is not commonly known by the disputed domain name or any derivative of Complainant’s mark. Second, Respondent is not licensed or authorized to use Complainant’s mark. Finally, Respondent is not making a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to redirect Internet users to a website featuring links to third-party websites, some of which directly compete with Complainant’s business; presumably, Respondent receives pay-per-click fees from the linked websites that are listed at the disputed domain name’s website. The Panel is directed to Attached Exhibit C for a screenshot of the disputed domain name’s website.
Respondent registered and is using the disputed domain name in bad faith. First, Respondent demonstrated bad faith by using the disputed domain name to promote products and services and compete directly with Complainant’s business, thereby violating Policy ¶ 4(b)(iv). Second, Respondent engaged in bad faith pursuant to Policy ¶ 4(a)(iii) by having actual knowledge of Complainant’s mark at the time of registration.
Respondent’s Contentions in this Proceeding:
Respondent did not submit a response in this proceeding. The Panel notes that Respondent registered the disputed domain name September 12, 2014.
Complainant established rights and legitimate interests in the mark contained in the disputed domain name.
Respondent has no such rights to or legitimate interests in the disputed domain name containing Complainant’s mark in its entirety.
Respondent registered a domain name that is confusingly similar to Complainant’s protected mark.
Respondent registered and used 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 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.
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.”).
Identical or Confusingly Similar:
Complainant is one of the world’s leading global hospitality companies, operating a peerless portfolio of destination resort brands, including Bellagio, MGM Grand, Mandalay Bay, and The Mirage. Complainant recently announced the development of “The Park,” which will be a unique dynamic outdoor park, dining, and entertainment district located between Complainant’s New York, New York and Monte Carlo resorts in Las Vegas, Nevada, and is scheduled to open in 2016. Attached Exhibit E includes articles regarding this project. Complainant registered the MGM mark with the USPTO. See Attached Exhibit A includes copies of Complainant’s USPTO registrations. The Panel agrees that trademark registrations with the USPTO demonstrate a complainant’s rights in its marks for the purposes of Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)). Accordingly, the Panel finds that Complainant demonstrated its rights in its mark pursuant to Policy ¶ 4(a)(i).
Complainant argues that the <mgmpark.com> domain name is confusingly similar to Complainant’s mark as it contains Complainant’s MGM trademark, the gTLD “.com,” and the descriptive term “park.” Affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Confusing similarity still exists between a complainant’s mark and a respondent’s disputed domain name where the respondent added a term that is closely associated with Complainant’s brand and trademark. See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business). As such, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The panel finds that Respondent registered a disputed domain name that is confusingly similar to Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights or Legitimate Interests:
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 of proof shifts to Respondent to show it does have such rights or legitimate interests. 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 UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have such rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first 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 interests in the subject domain names.”).
Complainant alleges that Respondent has no rights or legitimate interest in the disputed domain name. First, Complainant asserts that Respondent is not commonly known by the disputed domain name or any variation of Complainant’s mark. Second, Complainant argues that Respondent is not licensed or authorized to use Complainant’s mark. The Panel notes that the WHOIS information merely lists “DARRIN STOCK” as registrant and that Respondent failed to submit any evidence for the Panel’s consideration. Attached Exhibit B shows WHOIS data for the disputed domain name. As such, the Panel finds no basis in the available record to find Respondent commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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).
Complainant argues that Respondent is not making a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). Rather, Complainant contends, Respondent uses the disputed domain name to redirect Internet users to a website featuring links to third-party websites, some of which directly compete with Complainant’s business; Complainant presumes that Respondent receives pay-per-click fees from the linked websites that are listed at the disputed domain name’s website. Attached Exhibit C includes a screenshot of the disputed domain name’s website. No bona fide offering of goods or services or legitimate noncommercial or fair use exists when the website resolving from the disputed domain name links to products and services that compete directly with Complainant’s business. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use). Therefore, the Panel finds that Respondent is not using the disputed domain name in connection with 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).
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights to or legitimate interests in the domain name containing in its entirety Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith:
Complainant argues that Respondent demonstrated bad faith by using the disputed domain name to promote products and services and compete directly with Complainant’s business, thereby violating Policy ¶ 4(b)(iv). Attached Exhibit C includes a screenshot of the webpage that resolves from Respondent’s disputed domain name. Previous panels have found bad faith under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links to third-party websites that create revenue for the respondent. 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).”). Accordingly, the Panel finds that Respondent demonstrated bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant contends that Respondent engaged in bad faith pursuant to Policy ¶ 4(a)(iii) by having actual knowledge of Complainant’s mark at the time of registration. Specifically, Complainant argues that Respondent’s registration of the disputed domain name shortly after Complainant announced its plans for “The Park,” and the use of Complainant’s MGM mark in combination with the descriptive word “park” make it clear that Respondent was aware of Complainant’s mark and Complainant’s likely rights to protection of its mark at the time Respondent registered the disputed domain name. Past panels have found bad faith under Policy ¶ 4(a)(iii) where a respondent was well aware of the complainant’s marks at the time of the disputed domain name’s registration. See 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). For these reasons, the Panel mfinds that Respondent registered the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Respondent makes no contentions relative to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and used the disputed domain name in bad faith; 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 <mgmpark.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: August 30, 2015
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