FP Holdings, L.P. v. Victor Fungaso
Claim Number: FA2108001959171
Complainant is FP Holdings, L.P. (“Complainant”), represented by Erin Lewis of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is Victor Fungaso (“Respondent”), Bulgaria.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <palmscasino778.com>, <palmscasino777.com>, <palmscasino365.com>, <palmscasinotv.com>, <palmscasinocark.com>, and <palmscasinogo.com>, registered with Name.com, Inc.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 11, 2021; the Forum received payment on August 11, 2021.
On August 12, 2021, Name.com, Inc. confirmed by e-mail to the Forum that the <palmscasino778.com>, <palmscasino777.com>, <palmscasino365.com>, <palmscasinotv.com>, <palmscasinocark.com>, and <palmscasinogo.com> domain names are registered with Name.com, Inc. and that Respondent is the current registrant of the names. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 August 17, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 7, 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@palmscasino778.com, postmaster@palmscasino777.com, postmaster@palmscasino365.com, postmaster@palmscasinotv.com, postmaster@palmscasinocark.com, postmaster@palmscasinogo.com. Also on August 17, 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 September 11, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a wholly-owned subsidiary and an intellectual property holding company of Station Casinos, LLC; and owner and operator of the Palms Casino Resort in Las Vegas, Nevada. Complainant has rights in the PALMS mark through its registration in the United States in 2003.
Complainant alleges that the disputed domain names are confusingly similar to its PALMS mark because they incorporate the mark in its entirety, and merely add the generic term “casino” and either a numerical value or a generic term such as “tv”, “cark”, or “go” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent does not have any rights or legitimate interest in the disputed domain names because Respondent is not commonly known by the disputed domain names nor is Respondent authorized to use Complainant’s PALMS marks. Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because the resolving websites offer competing gaming and casino-related services.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith because the resolving websites offer, for commercial gain, casino and betting-related services related to Complainant’s services, creating the likelihood of confusion as to Complainant’s association with the disputed domain names. Respondent acted with actual knowledge of Complainant’s rights in the PALMS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark PALMS and uses it to operate casinos and to offer gambling services.
Complainant’s rights in its mark date back to 2003.
The disputed domain names were registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving websites offer services that compete with those of 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 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”).
The disputed domain names incorporate Complainant’s PALMS mark in its entirety, merely adding the generic term “casino” and either numerical digits or a generic term such as “tv”, “cark”, or “go”; and the “.com” generic top-level domain (“gTLD”). A domain name may be found to be identical or confusingly similar under Policy ¶ 4(a)(i) despite the addition of generic terms or numerical digits to a complainant’s mark. See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”); see also 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.”). Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain names: evidence of a respondent not being commonly known by a domain name, under Policy ¶ 4(c)(ii), may be found where the identifying WHOIS information is unrelated to a domain name. See PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Here, the WHOIS information lists “Victor Fungaso” as the registrant. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
The resolving websites promote services that compete with Complainant’s business. Use of a domain name to promote competing services may be evidence of a domain name not being used in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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).”). Therefore, the Panel finds that Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, the resolving websites offer competing services for commercial gain by confusing users as to their affiliation with Complainant. Use of a domain name to offer competing services may be evidence of bad faith under Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <palmscasino778.com>, <palmscasino777.com>, <palmscasino365.com>, <palmscasinotv.com>, <palmscasinocark.com>, and <palmscasinogo.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 13, 2021
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