Las Vegas Sands Corp. v. De Ka Chong / Sa Da De
Claim Number: FA2111001973852
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Michael J. McCue, Nevada, USA. Respondent is De Ka Chong / Sa Da De (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club>, registered with GoDaddy.com, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 18, 2021; the Forum received payment on November 18, 2021.
On November 19, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 22, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 13, 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@venetian2.club, postmaster@venetian3.club, postmaster@venetian5.club, postmaster@venetian6.club, postmaster@venetian8.club, postmaster@venetian9.club. Also on November 22, 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 November 20, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 owns and operates world-renowned resort casinos in the United States, Macao, and Singapore. Complainant has rights in the VENETIAN mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,507,363, registered Feb. 6, 2001). Respondent’s <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> domain names are confusingly similar to Complainant’s VENETIAN mark. Respondent incorporates the mark in its entirety and a number along with the “.club” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> domain names as Respondent is not commonly known by the disputed domain names nor did Complainant authorize Respondent to use the VENETIAN mark. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent attempts to pass off as Complainant in order to market services related to Complainant’s business. Respondent’s domain names fail to resolve to active webpages.
Respondent registered and used the <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> domain names in bad faith as Respondent attempts to create consumer confusion that it is affiliated with Complainant and its VENETIAN mark. Respondent had actual knowledge of Complainant’s rights in the VENETIAN mark due to the longstanding use and fame of the mark in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns and operates world-renowned resort casinos in the United States, Macao, and Singapore. Complainant has rights in the VENETIAN mark through its registration of the mark with the USPTO (e.g. Reg. No. 2,507,363, registered Feb. 6, 2001). Respondent’s <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> domain names are confusingly similar to Complainant’s VENETIAN mark.
Respondent registered the disputed domain names on September 27, 2021.
Respondent lacks rights or legitimate interests in the <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> domain names. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent attempts to pass off as Complainant in order to market services related to Complainant’s business. Respondent’s domain names fail to resolve to active webpages.
Respondent registered and used the <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> 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 VENETIAN mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> domain names are confusingly similar to Complainant’s VENETIAN mark. Respondent incorporates the mark in its entirety and a number along with the “.club” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interest in the <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> domain names as Respondent is not commonly known by the disputed domain names nor has Respondent been authorized to use the VENETIAN mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “De Ka Chong / Sa Da De” and there is no other evidence to suggest that Respondent was authorized to use the VENETIAN mark or was commonly known by the disputed domain names. Therefore, Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use of the domain names. Instead, Respondent attempts to pass off as Complainant in order to market services related to Complainant’s business. Use of a disputed domain name to pass off as a complainant by offering similar services is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) (“Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.”). Here, Complainant has provided a screenshot of Respondent’s <venetian8.club> domain name that shows links and services related to Complainant’s business in the gambling and casino business. Therefore, Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
Respondent’s domain names fail to resolve to active webpages. Failure to make an active use of a domain name may show that a respondent lacks rights or legitimate interests in a domain name per Policy ¶ 4(c)(i) or (iii). See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Here, Complainant has provided screenshots of Respondent’s domain names resolving webpage that fail to show an active webpage. Therefore, Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
Respondent registered and used the <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> domain names in bad faith as Respondent attempts to create consumer confusion that it is affiliated with Complainant and its VENETIAN mark. Use of a disputed domain name to create consumer confusion with a complainant by making use of its mark may be evidence of bad faith per Policy ¶ 4(b)(iv). See BBY Solutions, Inc. v. Grant Ritzwoller, FA 1703389 (Forum Dec. 21, 2016) (finding bad faith because the <bestbuyus.com> domain name was obviously connected with the complainant’s well-known BEST BUY mark, thus creating a likelihood of confusion strictly for commercial gain), 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).”). Here, Complainant has provided a screenshot of Respondent’s <venetian8.club> domain name that shows links and services related to Complainant’s business in the gambling and casino business.
Additionally, Complainant argues that Respondent registered the other confusingly similar disputed domain names, obviously connected to Complainant’s VENETIAN mark, in bad faith to cause consumer confusion even though Respondent was not actively using these domains. See Phat Fashions v. Kruger, FA 096193 (Forum Dec. 29, 2000) (finding bad faith in respondent’s registration of the disputed domain name and holding “It makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy. The Panelist, thus, has determined that there is bad faith use by [r]espondent even though his website is not as yet fully activated.”). Therefore, Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant argues that Respondent had knowledge of Complainant’s rights in the VENETIAN mark at the time of registering the <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> domain names. Therefore, Respondent registered and uses the domain names in bad faith. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (actual notice sufficient for finding Policy ¶ 4(a)(iii) bad faith).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <venetian2.club>, <venetian3.club>, <venetian5.club>, <venetian6.club>, <venetian8.club>, and <venetian9.club> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 3, 2022
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