Las Vegas Sands Corp. v. JiangYuTao
Claim Number: FA1603001663688
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Lewis Roca Rothgerber Christie LLP, Nevada, USA. Respondent is JiangYuTao (“Respondent”), unrepresented, China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lasvegassands.top>, registered with Jiangsu Bangning Science & Technology Co. Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 2, 2016; the Forum received payment on March 2, 2016.
On March 7, 2016, Jiangsu Bangning Science & Technology Co. Ltd. confirmed by e-mail to the Forum that the <lasvegassands.top> domain name is registered with Jiangsu Bangning Science & Technology Co. Ltd. and that Respondent is the current registrant of the name. Jiangsu Bangning Science & Technology Co. Ltd. has verified that Respondent is bound by the Jiangsu Bangning Science & Technology Co. Ltd. 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 8, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 2016 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@lasvegassands.top. Also on March 8, 2016, 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 April 1, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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.
The Panel notes that Complainant requests that the language of this administrative proceeding proceed in the English language pursuant to UDRP Rule 11(a). Complainant makes this request in light of the Chinese language Registration Agreement. Complainant argues that Respondent’s proficiency in English is demonstrated by the use of English characters and Respondent’s registration of the domain name in the English language.
Pursuant to UDRP Rule 11(a), the Panel finds sufficient evidence to suggest the likelihood that the Respondent is proficient in the English language and the Panel decides that the proceeding should be in English (see The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009), the panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language; see also Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant asserts trademark rights, inter alia, in LAS VEGAS SANDS and alleges that the disputed domain name is identical to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant uses the trademark LAS VEGAS SANDS mark in connection with operation of a casino;
2. Complainant is the owner of United States Patent & Trademark Office ("USPTO") Reg. No. 4,418,885 from July 9, 2010 for LAS VEGAS SANDS;
3. the disputed domain name was registered on June 16, 2015 and currently redirects Internet users to a travel website; and
4. Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating its trademark.
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.
As a general comment, the Complaint is rather casually compiled and lacks supporting evidence in what might have been critical ways. Another panel might have refused the Complaint for more than one reason, as explained later.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trademark rights. It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights. Complainant provided what it described as a “representative” table of trademark registrations but no proof of rights in any one trademark.
The Panel took the view that it is permitted to make limited research of its own into matters of factual relevance. Review of the USPTO website revealed a relevant registration in the name of Complainant for the trademark LAS VEGAS SANDS. The Panel is satisfied that Complainant has trademark rights but cautions Complainant’s representative to provide actual proof of trademark rights since another panel might have refused the complaint at this stage of proceedings (see State Farm Mut. Auto. Ins. Co. v. Periasami Malain, FA 705262 (Nat. Arb. Forum June 19, 2006) (“Complainant’s registrations with the United States Patent and Trademark Office of the trademark, STATE FARM, establishes its rights in the STATE FARM mark pursuant to Policy, paragraph 4(a)(i).”).
Panel finds that the disputed domain name is legally identical to the trademark. The domain name takes the trademark and adds only the non-distinctive TLD, “.top” (see Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000); Hanna‑Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006); AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006).
The publicly available WHOIS information provides no prima facie evidence that Respondent might be commonly known by the disputed domain name since the holder of the domain name is listed as “JiangYuTao”. There is no evidence that Respondent has any trademark rights. There is no evidence that Complainant has authorized Respondent to use the trademark and Complainant denies any such authorization.
Complainant states that the disputed domain name has not been used and so there has been no bona fide offering of goods or services in connection with it.
There is no proof with the Complaint that the domain name is not in use. Once more, the Complainant might have failed for that reason alone (see, for example,O.C. Seacrets, Inc. v. S. TradeWINs, Inc., FA 328042 (Forum Oct. 29, 2004) (“Complainant has provided no evidence as to the use of the <jamaicausa.com> domain name and has merely asserted that Respondent has no rights or legitimate interests, which is not sufficient to support a finding that Respondent lacks rights or legitimate interests.”).
Nonetheless, Panel makes an exception for the reason that Complainant may have reasoned that it did not need to “show” non-use. In order to satisfy itself, Panel made its own enquiry and discovered that, at least at the time of writing, that the domain name redirected Internet traffic to another online location which promoted holiday destinations. Without further Panel research, it cannot be known whether that redirection was in place at the time Complaint was filed. Whether or not that was so, there is no evidence of a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name since it was either not in use or redirected Internet users to a location unconnected with Complainant’s business (see, for example, Am. Online, Inc. v. Kloszewski, FA 204148 (Nat. Arb. Forum Dec. 4, 2003) where panel stated, “Respondent's [failure to make an active use] of the <aolfact.com> domain name for over six months is evidence that Respondent lacks rights and legitimate interests in the domain name.”; see also Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)).
Panel finds that Complainant has established a prima facie case. Accordingly, the onus shifts to Respondent to establish a legitimate interest in the domain name and in the absence of a Response that case is not rebutted and so Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and that it is being used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.’
Panel finds that Respondent’s actions fall squarely under paragraph 4(b)(iv) above. Panel has already found the disputed domain name to be confusingly similar to Complainant’s trademark. At least at the time of writing, the domain name redirects traffic to a travel site. That website exists for commercial gain. In terms of paragraph 4(b)(iv) of the Policy, Panel finds that it is more likely than not that Respondent is using the domain name to attract, for commercial gain, internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s trademark (see, for example, Affliction, Inc. v. Chinasupply, FA 1223521 (Nat. Arb. Forum Oct. 23, 2008)).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lasvegassands.top> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
April 11, 2016
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