Wynn Resorts Holdings, LLC v. nhanh anh
Claim Number: FA2112001977276
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Erin Lewis of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is nhanh anh (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wynnbet.net>, <wynn68.net>, <wynn77.net>, and <wynn88.net>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 15, 2021; the Forum received payment on December 16, 2021.
On December 16, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <wynnbet.net>, <wynn68.net>, <wynn77.net>, and <wynn88.net> 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 December 17, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 6, 2022 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@wynnbet.net, postmaster@wynn68.net, postmaster@wynn77.net, postmaster@wynn88.net. Also on December 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 January 12, 2022, 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 an owner and operator of luxury casino resorts in Nevada and Macau. Complainant has rights in the WYNN mark through its registration in the United States in 2016.
Complainant alleges that the disputed domain names are identical or confusingly similar to its WYNN mark because they wholly incorporates the mark while merely adding the generic term “bet” or numbers and the “.net” generic top-level domain (“gTLD”) to form a domain name.
According to Complainant, Respondent does not have any rights or legitimate interests in the disputed domain names because Respondent is not commonly known by the disputed domain names nor is Respondent authorized to use Complainant’s WYNN mark. 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 Respondent uses Complainant’s WYNN mark to advertise related casino, gambling, and entertainment services misleading users as to the affiliation with Complainant: the resolving websites display Complainant’s mark and distinctive logo.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith because Respondent diverts users seeking Complainant’s website onto a website that makes use of Complainant’s mark and logo while advertising services related to casinos, gambling, and entertainment and likely enjoying commercial gain for such use. Further bad faith is found through Respondent using complainant’s fanciful mark. Respondent acted with constructive knowledge of Complainant’s rights in the WYNN mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark WYNN and uses it to operate casinos.
Complainant’s rights in its mark date back to 2016.
The disputed domain names were registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving websites display Complainant’s mark and logo and advertise 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 WYNN mark in its entirety and merely add the generic term “bet” or numbers and the “.net” gTLD. A domain name may identical or confusingly similar to a complainant’s mark, under Policy ¶ 4(a)(i), despite the addition of generic terms, numbers, or a gTLD. 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 Twentieth Century Fox Film Corporation v. Domain Admin / PrivacyProtect.org / Denis Ferulev, FA 1652313 (Forum Jan. 19, 2016) (“Complainant notes that the domain name contains the recognised acronym for its FAMILY GUY mark, along with the number ‘24’ … the Panel finds that the <fg24.biz> domain name is confusingly similar to the FAMILY GUY mark under Policy ¶ 4(a)(i).”); 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’’. . . These alterations of the mark, made in forming the domain, do not save it from the realm of confusing similarity under the standards of the Policy.”); see also Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”). Therefore the 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 domain names: where a respondent does not provide evidence to the contrary, evidence that a respondent is not commonly known by a domain name, under Policy ¶ 4(c)(ii), may be provided through identifying WHOIS information that is unrelated to a domain name. See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record lists the registrant as “nhanh anh”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
The resolving websites display Complainant’s mark and logo and advertise competing services. Use of a domain name to pass of as a complainant by using complainant’s marks and advertising related 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) and (iii). See 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); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant); see also 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 to make a bona fide offering of goods and services or or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent (who did not reply to Complainant’s contentions) 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, Respondent passes off as Complainant by using its mark and logo in order to advertise competing services. Passing off as a complainant by using its mark and advertising related services may be evidence of bad faith registration and use under Policy ¶ 4(b)(iii) and/or (iv). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products); see also Asbury Auto Group Inc v. Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use); 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/or (iv).
Further, Respondent registered the disputed domain names with actual knowledge of Complainant’s mark: the resolving websites display Complainant’s mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes 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 <wynnbet.net>, <wynn68.net>, <wynn77.net>, and <wynn88.net> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 13, 2022
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