Las Vegas Sands Corp. v. zhouyuxin
Claim Number: FA1703001724266
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Michael J. McCue, Nevada, USA. Respondent is zhouyuxin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sands.lol>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 28, 2017; the Forum received payment on March 28, 2017.
On March 30, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <sands.lol> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 30, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 19, 2017 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@sands.lol. Also on March 30, 2017, 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 25, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink 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 transferred from Respondent to Complainant.
A. Complainant
Complainant, Las Vegas Sands Corp., is a global operator of casinos and resorts with a headquarters in Las Vegas, Nevada. Complainant, in connection with this business, uses the SANDS marks to promote its goods and services. Complainant has rights in the SANDS marks based upon registration with the United States Patent Office (“USPTO”) (e.g., Reg. No. 3,734,615, registered Jan. 5, 2010). Respondent’s domain name, <sands.lol>, is identical and confusingly similar as the domain is comprised of Complainant’s SANDS trademark in its entirety, plus the generic top level domain (“gTLD”) “.lol.”
Respondent has no rights or legitimate interests in the <sands.lol> domain name. Respondent is not commonly known by the domain, nor has Complainant authorized Respondent to register a domain containing its mark. Further, Respondent has failed to use the domain in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, <sands.lol> resolves to a page containing the SANDS mark, as well as other marks of Complainant, in an attempt to pass off as Complainant for Respondent’s commercial gain.
Respondent should be considered to have registered and used <sands.lol> in bad faith. The resolving webpage contains images of Complainant’s properties, Complainant’s marks, and a false copyright notice. In addition, Complainant alleges Respondent had actual knowledge of Complainant’s SANDS mark, evidenced through its registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set for the below, the Panel finds Complainant is entitled to the requested relief of transfer of the <sands.lol> > domain name.
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(f), 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 (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.”).
Complainant has rights in the SANDS marks based upon registration with the USPTO (e.g., Reg. No. 3,734,615, registered Jan. 5, 2010). Registration of a mark with the USPTO is sufficient to establish rights in the mark. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel finds that Complainant has rights in the SANDS mark per Policy ¶ 4(a)(i).
Complainant argues Respondent’s domain name, <sands.lol>, is identical and confusingly similar to Complainants SANDS mark as the domain is comprised of Complainant’s mark in its entirety, plus the gTLD “.lol.” The addition of a gTLD does not adequately differentiate between a mark and a domain name. See Reebok Int’l Ltd. v. Ohno, FA 511463 (Forum Aug. 23, 2005) (holding that the <reebok.net> domain name was identical to the complainant’s REEBOK mark because it fully incorporates the mark and merely adds a generic top-level domain). The Panel notes that the only change made in Respondent’s use of the mark is the addition of the gTLD. The Panel finds that <sands.lol> is identical to Complainant’s SANDS mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
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 shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (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 rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (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 argues Respondent lacks rights and legitimate interests in <sands.lol> as Respondent has not been commonly known by the domain name nor has Complainant authorized Respondent to register a domain name containing Complainant’s mark. In lieu of a Response, WHOIS information can support a finding that a respondent was not commonly known by a disputed domain name. See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names). The WHOIS information of record identifies Respondent as “zhouyuxin.” The Panel finds pursuant to Policy ¶ 4(c)(ii) that Respondent has not been commonly known by <sands.lol>.
Next, Complainant argues that Respondent has failed to utilize <sands.lol> in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, <sands.lol> resolves to a page containing the SANDS mark, as well as other marks of Complainant, in an attempt to pass off at Complainant for Respondent’s commercial gain. Use of a complainant’s mark to pass off as a complainant is not a use indicative of rights and legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as 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) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website). The Panel finds pursuant to Policy ¶¶ 4(c)(i) and (iii) that Respondent lacks any bona fide offering of goods or services or any legitimate noncommercial or fair use through the <sands.lol> domain name.
Complainant has proved this element.
Complainant argues Respondent should be considered to have registered and used <sands.lol> in bad faith. Respondent uses Complainant’s marks and images of Complainant’s properties to attract Internet users looking for Complainant through the confusion created. Use of a disputed domain name to attract Internet users looking for a complainant’s web page to a respondent’s page for respondent’s financial gain can support a finding that a respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). Respondent has used Complainant’s mark extensively in the creation of <sands.lol>. The Panel finds that Respondent has registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Lastly, Complainant alleges Respondent had constructive and actual knowledge of Complainant’s SANDS mark—further evidence of bad faith per Policy ¶ 4(a)(iii). Complainant contends the SANDS mark has such notoriety that Respondent could not have otherwise registered it without otherwise having knowledge of Complainant’s marks. Use of a complainant’s mark in a disputed domain name can demonstrate a respondent’s constructive and actual knowledge of the mark, further evidence of a respondent’s bad faith per Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Google Inc. v. Ahmed Humood, FA1411001591796 (Forum January 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.”). The Panel finds that Respondent had actual knowledge of Complainant’s SANDS mark and continued to register and utilize a resolving page displaying the mark, further evidence of Respondent’s bad faith registration and use per Policy ¶ 4(a)(iii).
Complainant has proved this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sands.lol> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: April 27, 2017
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