Las Vegas Sands Corp. v. EloneGaming / Elone Gaming N.V.
Claim Number: FA2103001937248
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Michael J. McCue of 3993 Howard Hughes Parkway, Suite 600, Nevada, USA. Respondent is EloneGaming / Elone Gaming N.V. (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <palazzo20.bet>, <palazzo21.bet>, <palazzo22.bet>, <palazzo23.bet>, <palazzo24.bet>, and <palazzo25.bet>, 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 or her knowledge has no known conflict in serving as Panelist in this proceeding.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 19, 2021; the Forum received payment on March 19, 2021.
On March 23, 2021, Pdr Ltd. D/B/A Publicdomainregistry.Com confirmed by e-mail to the Forum that the disputed domain names are registered with Pdr Ltd. D/B/A Publicdomainregistry.Com and that Respondent is the current registrant of the names. 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 31, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 20, 2021 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@palazzo20.bet, postmaster@palazzo21.bet, postmaster@palazzo22.bet, postmaster@palazzo23.bet, postmaster@palazzo24.bet, postmaster@palazzo25.bet. Also on March 31, 2021, 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 timely, official response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 26, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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 names be transferred from Respondent to Complainant.
A. Complainant
i) Complainant, Las Vegas Sands Corp., operates various resorts and casinos around the world. Complainant has rights in the PALAZZO mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. 2,729,637, registered Jun. 24, 2003). The disputed domain names are confusingly similar to Complainant’s PALAZZO mark, only differing by the addition of a number, ranging from 20 – 25, and adding the “.bet” generic top-level domain (“gTLD”).
ii) Respondent lacks rights and legitimate interests in the disputed domain names as it is not commonly known by any of the disputed domains and is neither an authorized user or licensee of the PALAZZO mark. Additionally, Respondent does not use the disputed domain names to make a bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent attempt to pass itself off as Complainant in an attempt to divert Internet users to a fake online gambling website.
iii) Respondent registered and uses the disputed domain names in bad faith. Respondent registered the disputed domain names to divert Internet users to its own website where it passed itself off as Complainant to attract commercial gain. Additionally, Respondent had actual knowledge of Complainant’s trademark rights prior to registering the infringing domain names.
B. Respondent
Respondent did not submit an official Response in this proceeding. Respondent sent an email correspondence. Respondent in email correspondence appears to elude that it changed a logo, and asks what more the Complainant could want. Respondent argues it is in a different business than Complainant.
1. The disputed domain names were registered on September 10, 2020 (<palazzo20.bet>), January 13, 2021 (<palazzo21.bet>), February 9, 2021 (<palazzo22.bet>), February 21, 2021 (<palazzo23.bet>), February 26, 2021 (<palazzo24.bet>), and March 22, 2021 (<palazzo25.bet>).
2. Complainant has established rights in the PALAZZO mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. 2,729,637, registered Jun. 24, 2003).
3. Respondent’s use of the PALAZZO mark on its websites was designed to look like an authentic Palazzo-casino website in an attempt to associate itself with, indicate that it is approved by, or sponsored by Complainant.
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 an official 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant asserts rights in the PALAZZO mark through its registration with the USPTO. Generally, registration of a mark with the USPTO or other trademark agencies sufficiently demonstrates rights in a mark under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant provides evidence of its registration with the USPTO (e.g., Reg. 2,729,637, registered Jun. 24, 2003). The Panel therefore finds Complainant has rights in the PALAZZO mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain names are confusingly similar to Complainant’s mark as each domain merely adds a number from 20 – 25 along with the “.bet” gTLD. Adding numbers and a gTLD describing the services of Complainant may not negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. network admin, FA 1622138 (Forum July 11, 2015) (“The addition, deletion, and switching of . . . numbers in domain names do not remove Respondent’s domain names from the realm of confusing similarity in relation to Complainant’s BLOOMBERG mark pursuant to Policy ¶ 4(a)(i).”); see also DD IP Holder LLC v. Phill Aspden, FA 1603215 (Forum Apr. 8, 2015) (finding that the disputed domain name <dunkin.coffee> is identical to Complainant's DUNKIN COFFEE registered mark, as gTLDs that reference goods or services offered under the registered mark may be taken into account). Thus, the Panel finds the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent lacks rights and legitimate interests in the disputed domain names as it is not commonly known by any of the disputed domains and is neither an authorized user or licensee of the PALAZZO mark. When a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). The WHOIS information of record identifies “EloneGaming / Elone Gaming N.V.” as the registrant of the disputed domain names. See Compl. Ex. 4; see also registrar verification emails. The Panel therefore finds Respondent is not commonly known by the disputed domains under Policy ¶ 4(c)(ii).
Complainant also claims that Respondent does not use the disputed domain names in connection to any bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent instead attempts to pass itself off as Complainant in an attempt to divert Internet users to fake online gambling websites. Using a confusingly similar domain name to pass off as Complainant is not indicative of rights or legitimate interests, and does not qualify as a bona fide offering of goods or services, nor can it be a legitimate noncommercial or fair use in this instance. See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”). Complainant provides screenshots of the initial landing pages for several of the disputed domain names as evidence of Respondent’s attempt to pass off as Complainant, noting that <palazzo20.bet> and <palazzo21.bet> allegedly redirect to <palazzo24.bet>.
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant argues that Respondent registered and uses the disputed domain names in bad faith as Respondent uses the disputed domain names to pass itself off as Complainant. Use of a confusingly similar domain name to pass off as Complainant and operate a fake gambling website may qualify as bad faith attraction to commercial gain under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). As previously noted, Complainant provides screenshots of the resolving websites for the disputed domain names as evidence of its attempts to pass off as Complainant and presumably profit from operate its fake gambling websites. The Panel therefore finds Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iv).
Additionally, Complainant argues that Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the PALAZZO mark. Under Policy ¶ 4(a)(iii), actual knowledge sufficiently establishes bad faith, and may be demonstrated by the fame of a mark and the use Respondent makes of a disputed domain. See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Complainant claims to be a world-renowned casino and resort chain, and Respondent uses the disputed domain names to seemingly operate fake online gambling websites. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain names that Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the PALAZZO mark, and finds bad faith under 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 <palazzo20.bet>, <palazzo21.bet>, <palazzo22.bet>, <palazzo23.bet>, <palazzo24.bet>, and <palazzo25.bet> domain names be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: May 3, 2021
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