FP Holdings, L.P. v. haluk aktaroglu / Birkan Ulusoy
Claim Number: FA2108001959172
Complainant is FP Holdings, L.P. (“Complainant”), represented by Lindsey A. Williams of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is haluk aktaroglu / Birkan Ulusoy (“Respondent”), Bulgaria.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <palmscasino783.com>, <palmscasino782.com>, <palmscasinogirisi.com>, and <palmscasinoaffiliates.com>, registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin 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, NameCheap, Inc. confirmed by e-mail to the Forum that the <palmscasino783.com>, <palmscasino782.com>, <palmscasinogirisi.com>, and <palmscasinoaffiliates.com> domain names (the “disputed domain names”) are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 18, 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@palmscasino783.com, postmaster@palmscasino782.com, postmaster@palmscasinogirisi.com, postmaster@palmscasinoaffiliates.com. Also on August 18, 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 10, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant alleges that the disputed domain names are controlled by the same person or entity operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided the domain names are registered by the same domain name holder.” Complainant shows that the disputed domain names resolve to webpages with identical designs. In the absence of any argument or evidence to the contrary, the Panel finds that the named registrants of the disputed domain names are one in the same, and will refer to them collectively as “Respondent.”
A. Complainant
1. Respondent’s <palmscasino783.com>, <palmscasino782.com>, <palmscasinogirisi.com>, and <palmscasinoaffiliates.com> domain names are confusingly similar to Complainant’s PALMS mark.
2. Respondent does not have any rights or legitimate interests in the <palmscasino783.com>, <palmscasino782.com>, <palmscasinogirisi.com>, and <palmscasinoaffiliates.com> domain names.
3. Respondent registered and uses the <palmscasino783.com>, <palmscasino782.com>, <palmscasinogirisi.com>, and <palmscasinoaffiliates.com> domain names in bad faith.
B. Respondent did not file a Response.
Complainant, FP Holdings LP, owns and operates the Palms Casino Resort in Las Vegas, Nevada. Complainant holds a registration for the PALMS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,733,483 registered Oct. 14, 2003).
Respondent registered the <palmscasinogirisi.com> domain name on June 10, 2021, the <palmscasino782.com> and <palmscasino783.com> domain names on June 18, 2021, and the <palmscasinoaffiliates.com> domain name on June 24, 2021. Respondent uses them to promote competing services.
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 Panel finds that Complainant has rights in the PALMS mark based on registration with the USPTO. 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).”).
Respondent’s <palmscasino783.com>, <palmscasino782.com>, <palmscasinogirisi.com>, and <palmscasinoaffiliates.com> domain names all use Complainant’s PALMS mark and simply add numbers, the terms “casino,” “affiliates,” and “girisi” and the “.com” gTLD. Additions such as generic/descriptive terms, numbers, and gTLDs are insufficient to overcome confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). 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 Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”) Thus, the Panel finds that the disputed domain names are confusingly similar to Complainant’s PALMS mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 claims that Respondent does not have rights or legitimate interests in the <palmscasino783.com>, <palmscasino782.com>, <palmscasinogirisi.com>, and <palmscasinoaffiliates.com> domain names because Respondent is not commonly known by the domain names. Respondent is not authorized to use Complainant’s PALMS mark. The WHOIS information of record notes “Haluk Aktaroglu / Birkan Ulusoy” as the registrants of the disputed domain names, bearing no resemblance to the domain names. Therefore, the Panel finds that Respondent is not commonly known by the domain names, and thus has no rights under Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”).
Complainant claims that Respondent doesn’t use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use, but rather displays Complainant’s marks in connection with competing online casino services. Using a disputed domain name to suggest affiliation with a complainant and/or compete with a complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Crow v. LOVEARTH.net, FA 203208 (Forum Nov. 28, 2003) (“It is neither a bona fide offerings [sic] of goods or services, nor an example of a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as Complainant . . . .”). Complainant provides screenshots of the resolving webpages at the disputed domain names showing that Respondent uses them to offer gaming and casino-related services. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <palmscasino783.com>, <palmscasino782.com>, <palmscasinogirisi.com>, and <palmscasinoaffiliates.com> domain names in bad faith because Respondent uses the disputed domains to mislead consumers and promote competing services. Using a disputed domain name to suggest affiliation with a complainant and offer competing goods or services evinces bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(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 Hewlett-Packard Co. v. Ali, FA 353151 (Forum Dec. 13, 2004) (“Respondent [used “HP” in its domain name] to benefit from the goodwill associated with Complainant’s HP marks and us[ed] the <hpdubai.com> domain name, in part, to provide products similar to those of Complainant. Respondent’s practice of diversion, motivated by commercial gain, constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Accordingly, the Panel finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant argues that Respondent knew of Complainant’s rights in the PALMS mark when it registered the dispute domain names. Actual knowledge of a complainant’s rights in a mark may be shown by evidence such as the fame of the mark and the use the respondent makes of the mark under Policy ¶ 4(a)(iii). See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 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 and in competition with Complainant.”). Complainant contends that there is no doubt Respondent was aware of Complainant’s rights in the PALMS mark based upon Respondent’s use of the disputed domain names to display competing services, and specifically its use of an image of Complainant’s resort on the webpages. The Panel agrees, also noting the fame of the PALMS mark in connection with gambling, and finds that Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the PALMS mark, demonstrating further bad faith under Policy ¶ 4(a)(iii).
The Panel finds that 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 <palmscasino783.com>, <palmscasino782.com>, <palmscasinogirisi.com>, and <palmscasinoaffiliates.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 13, 2021
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