Landry's Restaurants, Inc. & Landry's
Trademark, Inc. v. Colette Nolan
Claim
Number: FA0505000475219
Complainant is Landry's Restaurants, Inc. & Landry's
Trademark, Inc., (“Complainant”), represented by Sherri L. Eastley, of Wong Cabello, L.L.P.,
PO Box 685108, Austin, TX 78768-5108.
Respondent is Colette Nolan (“Respondent”),
PO Box 1035, Kemah, TX 77565.
REGISTRAR
AND DISPUTED DOMAIN NAMES
The
domain name at issue is <landryscasinos.com>, <landrycasinos.com>
<landrysflagshipcasinos.com>, <landrysflagshipcasino.com>,
<landrysresortandcasino.com>, <landrysresortandcasinos.com>,
<landrysresort.com> and <landrysresorts.com>, registered
with Network Solutions, 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.
Sandra
Franklin as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on May
12, 2005; the National Arbitration Forum received a hard copy of the Complaint
on May 16, 2005.
On
May 16, 2005, Network Solutions, Inc. confirmed by e-mail to the National
Arbitration Forum that the domain names <landryscasinos.com>,
<landrycasinos.com>, <landrysflagshipcasinos.com>,
<landrysflagshipcasino.com>, <landrysresortandcasino.com>, <landrysresortandcasinos.com>,
<landrysresort.com> and <landrysresorts.com> are
registered with Network Solutions, Inc. and that Respondent is the current
registrant of the names. Network
Solutions, Inc. has verified that Respondent is bound by the Network Solutions,
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
May 17, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 6, 2005 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@landryscasinos.com, postmaster@landrycasinos.com, postmaster@landrysflagshipcasinos.com,
postmaster@landrysflagshipcasino.com, postmaster@landrysresortandcasino.com,
postmaster@landrysresortandcasinos.com, postmaster@landrysresort.com and
postmaster@landrysresorts.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
June 15, 2005, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the National Arbitration Forum appointed Sandra Franklin
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 <landryscasinos.com>,
<landrycasinos.com>, <landrysflagshipcasinos.com>, <landrysflagshipcasino.com>,
<landrysresortandcasino.com>, <landrysresortandcasinos.com>,
<landrysresort.com> and <landrysresorts.com> domain
names are confusingly similar to Complainant’s LANDRY’S mark.
2. Respondent does not have any rights or
legitimate interests in the <landryscasinos.com>, <landrycasinos.com>,
<landrysflagshipcasinos.com>, <landrysflagshipcasino.com>,
<landrysresortandcasino.com>, <landrysresortandcasinos.com>,
<landrysresort.com> and <landrysresorts.com> domain
names.
3. Respondent registered and used the <landryscasinos.com>,
<landrycasinos.com>, <landrysflagshipcasinos.com>, <landrysflagshipcasino.com>,
<landrysresortandcasino.com>, <landrysresortandcasinos.com>,
<landrysresort.com> and <landrysresorts.com> domain
names in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Landry’s Restaurants, Inc., owns and operates over 300 restaurants in the
United States. Complainant, is a
publicly traded company on the New York Stock Exchange.
Since 1980,
Complainant has offered quality restaurant and bar services and related
paraphernalia in the United States under the LANDRY’S mark. Complainant also offers resort services
through related companies, and are the owners of a hotel using the mark
“flagship” near the home of Respondent.
In addition Complainant has been seeking to purchase and has recently
entered an agreement to purchase the famous Golden Nugget casino in Las
Vegas. On February 4, 2005, Complainant
publicly announced its intent to acquire the Golden Nugget casino in Las
Vegas. Two days later Respondent
registered four of the disputed domain names including Complainants famous mark
LANDRY’S and the generic descriptors “casino” and “resorts.”
Complainant has
spent millions of dollars advertising and promoting its restaurants and bar
services under the LANDRY’S mark.
Complainant has registered the LANDRY’S mark with the United States
Patent and Trademark Office (“USPTO”) (Reg. No. 1,588,264 issued March 20,
1990).
Respondent
registered the disputed domain names between June 4, 2004 and February 6,
2005. Respondent’s domain names resolve
to a website that states “under construction and coming soon,” and features
links to casinos and gambling-related websites.
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.
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.
Complainant has
established rights in the LANDRY’S mark through registration with the United
States Patent and Trademark Office and continuous use of the mark in commerce
since 1980. See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb.
Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a
presumption that they are inherently distinctive and have acquired secondary
meaning.”); see also Janus Int’l Holding Co. v. Rademacher,
D2002-0201 (WIPO Mar. 5, 2002) finding that Panel decisions have held that
registration of a mark is prima facie evidence
of validity, which creates a rebuttable presumption that the mark is inherently
distinctive. Respondent has the burden of refuting this assumption.
Respondent’s <landryscasinos.com>,
<landrycasinos.com>, <landrysflagshipcasinos.com>, <landrysflagshipcasino.com>,
<landrysresortandcasino.com>, <landrysresortandcasinos.com>,
<landrysresort.com> and <landrysresorts.com> domain
names are confusingly similar to Complainant’s LANDRY’S mark. Respondent’s domain names fully incorporate
Complainant’s mark, and only deviate with the addition of the generic top-level
domain (“gTLD”) “.com” and generic terms.
These additions to Complainant’s mark do not distinguish the domain
names pursuant to Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc.,
D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly
incorporates a Complainant’s registered mark is sufficient to establish
identity or confusing similarity for purposes of the Policy despite the
addition of other words to such marks”); see
also Treeforms, Inc. v.
Cayne Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) finding
that confusion would result when Internet users, intending to access
Complainant’s website, think that an affiliation of some sort exists between
Complainant and Respondent, when in fact, no such relationship would exist; see also Space
Imaging LLC v. Brownell, AF-0298
(eResolution Sept. 22, 2000) finding confusing similarity where Respondent’s
domain name combines Complainant’s mark with a generic term that has an obvious
relationship to Complainant’s business.
The
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent
failed to contest Complainant’s assertion.
Because Complainant’s evidence and arguments are unopposed, the Panel is
permitted to accept all reasonable inferences made in the Complaint as true. See
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.”); see also Desotec N.V. v. Jacobi Carbons AB,
D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption
that Complainant’s allegations are true unless clearly contradicted by the
evidence).
Additionally,
Complainant has submitted a prima facie case to the Panel, thereby
shifting the burden to Respondent.
Respondent’s failure to fulfill its burden by not responding means that
Respondent has failed to invoke any circumstances that could demonstrate its
rights or legitimate interests in the domain names. See Do The Hustle,
LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) finding that once
Complainant asserts that Respondent has no rights or legitimate interests with
respect to the domain, the burden shifts to Respondent to provide credible
evidence that substantiates its claim of rights and legitimate interests in the
domain name; see also Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) finding that by not submitting a Response,
Respondent has failed to invoke any circumstance which could demonstrate any
rights or legitimate interests in the domain name.
Furthermore,
nothing in the record indicates that Respondent is either commonly known by the
disputed domain names or authorized to register domain names featuring
Complainant’s famous mark. Thus, the
Panel finds that Respondent has not established rights or legitimate interests
in the <landryscasinos.com>, <landrycasinos.com>, <landrysflagshipcasinos.com>,
<landrysflagshipcasino.com>, <landrysresortandcasino.com>,
<landrysresortandcasinos.com>, <landrysresort.com> and
<landrysresorts.com> domain names pursuant to Policy ¶ 4(c)(ii). See
Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) stating
“nothing in the respondent’s WHOIS information implies that the respondent is
‘commonly known by the disputed domain name” as one factor in determining
whether Policy ¶ 4(c)(ii) applies; see
also Compagnie de Saint Gobain v. Com-Union
Corp., D2000-0020 (WIPO
Mar. 14, 2000) finding no rights or legitimate interests where the respondent
was not commonly known by the mark and never applied for a license or
permission from the complainant to use the trademarked name.
The
Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
On February 4,
2005, Complainant publicly announced its intent to acquire the Golden Nugget
casino in Las Vegas. Two days later
Respondent registered four of the disputed domain names including Complainant’s
famous mark LANDRY’S and the generic descriptors “casino” and “resorts.” Such use is evidence of opportunistic bad
faith. See Mr. Severiano Ballesteros Sota, Fairway, S.A. and Amen Corner,
S.A. v. Waldron, D2001-0351 (WIPO June 18, 2001) finding that
Respondent's registration of the <seveballesterostrophy.com> domain name
at the time of the announcement of the Seve Ballesteros Trophy golf tournament
"strongly indicates an opportunistic registration"; see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO
Dec. 4, 2000) finding that the "domain names are so obviously connected
with the Complainants that the use or registration by anyone other than
Complainants suggests 'opportunistic bad faith'".
Additionally,
the Panel infers that Respondent receives click-through fees for diverting
Internet users to these competing websites.
Since Respondent’s domain names are confusingly similar to Complainant’s
mark, consumers accessing Respondent’s domain names may become confused as to
Complainant’s affiliation with the resulting website. Respondent’s commercial use of the disputed domain names
constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See
Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration
and use of a domain name that incorporates another's mark with the intent to
deceive Internet users in regard to the source or affiliation of the domain
name is evidence of bad faith.”); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22,
2002) finding that if Respondent profits from its diversionary use of
Complainant's mark when the domain name resolves to commercial websites and
Respondent fails to contest the Complaint, it may be concluded that Respondent
is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Furthermore,
Respondent registered the disputed domain names with actual or constructive
knowledge of Complainant’s rights in the LANDRY’S mark due to Complainant’s
registration of the mark with the USPTO.
Moreover, the Panel infers that Respondent had actual knowledge of
Complainant’s mark due to the obvious connection between the content advertised
on Respondent’s website and Complainant’s new business venture. Thus, Respondent registered and used the
disputed domain names in bad faith pursuant to Policy ¶ 4(a)(iii). See
Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4,
2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the
USPTO, a status that confers constructive notice on those seeking to register
or use the mark or any confusingly similar variation thereof.”); see also Pfizer, Inc. v. Suger,
D2002-0187 (WIPO Apr. 24, 2002) finding that because the link between
Complainant’s mark and the content advertised on Respondent’s website was
obvious, Respondent “must have known about the Complainant’s mark when it
registered the subject domain name”.
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 <landryscasinos.com>, <landrycasinos.com>,
<landrysflagshipcasinos.com>,
<landrysflagshipcasino.com>, <landrysresortandcasino.com>, <landrysresortandcasinos.com>,
<landrysresort.com> and
<landrysresorts.com> domain names be TRANSFERRED from
Respondent to Complainant.
Sandra Franklin, Panelist
Dated:
June 28, 2005
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