Las Vegas Sands Corp. v. EloneGaming / Elone Gaming N.V.
Claim Number: FA2106001949843
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Michael J. McCue, Nevada, USA. Respondent is EloneGaming / Elone Gaming N.V. (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <palazzobet26.com>, <palazzobet27.com>, <palazzobet28.com>, and <palazzobet29.com> (collectively “Domain Names”), 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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 4, 2021; the Forum received payment on June 4, 2021.
On June 8, 2021, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <palazzobet26.com>, <palazzobet27.com>, <palazzobet28.com>, and <palazzobet29.com> 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 June 11, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 1, 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@palazzobet26.com, postmaster@palazzobet27.com, postmaster@palazzobet28.com, postmaster@palazzobet29.com. Also on June 11, 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 response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 7, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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
Complainant, Las Vegas Sands Corp., operates several well-known International resorts and casinos. Complainant has rights in the PALAZZO mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. 2,683,895, registered Feb. 4, 2003). Respondent’s <palazzobet26.com>, <palazzobet27.com>, <palazzobet28.com>, and <palazzobet29.com> domain names are confusingly similar to Complainant’s PALAZZO mark, only differing by the addition of the generic term “bet,” a number ranging from 26 to 29, and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <palazzobet26.com>, <palazzobet27.com>, <palazzobet28.com>, and <palazzobet29.com> domain names as it is not commonly known by the Domain Names and is neither an authorized user or licensee of the PALAZZO mark. Additionally, Respondent does not use the Domain Names for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use, but instead attempts to pass off as Complainant and purports to offer competing online gambling services for financial gain.
Respondent registered and uses the <palazzobet26.com>, <palazzobet27.com>, <palazzobet28.com>, and <palazzobet29.com> domain names in bad faith. Specifically, Respondent is attempting to attract Internet users for commercial gain by diverting Internet users to its websites where it offers services which compete directly with Complainant’s business. Additionally, Respondent registered the Domain Names with actual knowledge of Complainant’s rights in the PALAZZO mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the PALAZZO mark. Each of the Domain Names is confusingly similar to Complainant’s PALAZZO mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names 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 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 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 has rights in the PALAZZO mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g. Reg. 2,683,895, registered February 4, 2003). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
The Panel finds that each of the Domain Names is confusingly similar to the PALAZZO mark as they each incorporate the entire PALAZZO mark while adding the generic term “bet,” a number between 26 and 29, and the “.com” gTLD. Such changes are insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i) analysis. See Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). See also Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names 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) and 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.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the PALAZZO mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. 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)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS information of record lists “EloneGaming / Elone Gaming N.V.” as the registrants of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).
Each of the Domain Names presently resolves or has (prior to the commencement of the proceeding) resolved to a website that offers competing gambling services under the PALAZZO mark. As such the Panel concludes that each of the Domain Names has passed itself off as an official website of the Complainant for the purpose of selling gambling services that directly compete with Complainant’s gambling services. The use of a confusingly similar domain name to resolve to a webpage that directly offers services that directly compete with a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use; indeed it provides a false impression that the Respondent is affiliated with or authorized by Complainant. 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).”). See also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that, at the time of registration of the Domain Names, between (March and April 2021), Respondent had actual knowledge of Complainant’s PALAZZO mark since the Respondent’s Website passes itself off as an official website of the Complainant including offering services in competition with Complainant. Furthermore, there is no obvious explanation, nor has one been provided, for an entity to register four domain names that contain the PALAZZO mark and use them to redirect visitors to a website offering gambling services in direct competition with the Complainant under the PALAZZO mark other than to take advantage of Complainant’s reputation in the PALAZZO mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Names in bad faith to create confusion with Complainant’s PALAZZO mark for commercial gain by using the confusingly similar Domain Names to resolve to websites that, through the use of the PALAZZO mark, passed themselves off as being connected to the Complainant and offered gaming services in direct competition with the Complainant’s services. Using a confusingly similar domain name to trade upon the goodwill of a complainant can evince bad faith under Policy ¶ 4(b)(iv). See CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). See also 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.”).
The Panel finds Complainant has satisfied 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 <palazzobet26.com>, <palazzobet27.com>, <palazzobet28.com>, and <palazzobet29.com> domain names be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: July 8, 2021
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