Wynn Resorts Holdings, LLC v. yang jing
Claim Number: FA2205001996302
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Erin Lewis of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is yang jing (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wynnlasvss.com>, <wynnlasvg.com>, <wynnlasvgs.com>, <wynnlasvgss.com>, <wynnlasvs.com>, <wynnlav.com>, <wynnlvegass.com>, <wynnlvgas.com>, <wynnlvgs.com> registered with Hefei Juming Network Technology Co., Ltd; Hong Kong Juming Network Technology Co., Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 13, 2022; the Forum received payment on May 13, 2022.
On May 23, 2022, Hefei Juming Network Technology Co., Ltd; Hong Kong Juming Network Technology Co., Ltd confirmed by e-mail to the Forum that the <wynnlasvss.com>, <wynnlasvg.com>, <wynnlasvgs.com>, <wynnlasvgss.com>, ,<wynnlasvs.com>, <wynnlav.com>, <wynnlvegass.com>, <wynnlvgas.com>, and <wynnlvgs.com> domain names are registered with Hefei Juming Network Technology Co., Ltd; Hong Kong Juming Network Technology Co., Ltd and that Respondent is the current registrant of the names. Hefei Juming Network Technology Co., Ltd; Hong Kong Juming Network Technology Co., Ltd has verified that Respondent is bound by the Hefei Juming Network Technology Co., Ltd; Hong Kong Juming Network Technology Co., Ltd 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 May 27, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 16, 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@wynnlasvss.com, postmaster@wynnlasvg.com, postmaster@wynnlasvgs.com, postmaster@wynnlasvgss.com, postmaster@wynnlasvs.com, postmaster@wynnlav.com, postmaster@wynnlvegass.com, postmaster@wynnlvgas.com, postmaster@wynnlvgs.com. Also on May 27, 2022, 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 June 28, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant is a Nevada-based company that owns a number of hotels and casinos.
Complainant claims rights in the WYNN mark through registration with the United States Patent and Trademark Office (“USPTO”).
The at-issue domain names <wynnlasvss.com>, <wynnlasvg.com>, <wynnlasvgs.com>, <wynnlasvgss.com>, <wynnlasvs.com>, <wynnlav.com>, <wynnlvegass.com>, <wynnlvgas.com> and <wynnlvgs.com are confusingly similar because they wholly incorporate the WYNN mark and differ only through various shorthand rewritings of the geographic term “las vegas” with the addition of the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the at-issue domain names. Respondent is not commonly known by the at-issue domain names, nor has Complainant authorized Respondent to use the WYNN mark in any way. Additionally, Respondent fails to use any of the domain names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the domain names in an attempt to pass itself off as Complainant and offer competing services on websites addressed by the domain names that are adorned with Complainant’s trademarks, logos and other proprietary intellectual property.
Respondent registered and uses the at-issue domain names in bad faith. Respondent uses the domain names in an attempt to pass off as Complainant, disrupting Complainant’s business and further to trade on the WYNN mark by offering competing services on domain name associated website(s). Respondent had actual knowledge of Complainant’s rights in the WYNN mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the WYNN trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the WYNN trademark.
Respondent’s uses the at-issue domain names to pass itself off as Complainant and offer 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 at-issue domain names are confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for its WYNN mark establishes Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)).
The at-issue domain names all contain Complainant’s WYNN trademark followed by various terms with each term apparently referencing “Las Vegas.” The domain names all conclude with the top level domain name “.com.” The differences between any of the at-issue domain names and Complainant’s WYNN trademark are insufficient to distinguish any domain name from Complainant’s mark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <wynnlasvss.com>, <wynnlasvg.com>, <wynnlasvgs.com>, <wynnlasvgss.com>, <wynnlasvs.com>, <wynnlav.com>, <wynnlvegass.com>, <wynnlvgas.com>, and <wynnlvgs.com> domain names are each confusingly similar to Complainant’s WYNN trademark. See Gannett Co. v. Chan, D2004-0117 (WIPO Apr. 8, 2004) (“…it is well established that a domain name consisting of a well-known mark, combined with a geographically descriptive term or phrase, is confusingly similar to the mark.”)
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 the at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of any at‑issue 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 at-issue domain names identifies the domain names’ registrant as “Yang Jing” and the record before the Panel contains no evidence tending to suggest that Respondent is commonly known by any of the at-issue domain names or by WYNN. The Panel therefore concludes that Respondent is not commonly known by <wynnlasvss.com>, <wynnlasvg.com>, <wynnlasvgs.com>, <wynnlasvgss.com>, <wynnlasvs.com>, <wynnlav.com>, <wynnlvegass.com>, <wynnlvgas.com>, or <wynnlvgs.com> for the purposes of Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent collectively uses the at-issue domain names to pass off as Complainant and to address websites purporting to offer services competing with services offered by Complainant. Respondent’s use of the confusingly similar domain names in this manner suggests neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of such domain names under Policy ¶ 4(c)(iii). See Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”); see also, CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect each at-issue domain name under Policy ¶ 4(a)(ii).
As discussed below without limitation, circumstances are present which permit the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent’s uses the at-issue domain names to pass itself off as Complainant and to address commercial websites that offer competing services. Markedly, such use is disruptive to Complainant’s business and further shows that Respondent is attempting to attract internet users for commercial gain by trading off Complainant’s WYNN mark. Respondent’s use of the domain names demonstrates Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business).
Moreover, Respondent had actual knowledge of Complainant’s rights in the WYNN mark when it registered the at-issue domain names. Respondent’s actual knowledge is evident from the notoriety of Complainant’s mark; from Respondent’s offering of Complainant’s branded services or similar services on websites addressed by one or more of the at-issue domain names; from Respondent’s use of Complainant’s mark and intellectual property on such websites; and from Respondent’s registration of multiple domain names containing Complainant’s WYNN mark. Respondent’s registration and use of the confusingly similar domain names with knowledge of Complainant’s rights in WYNN mark further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wynnlasvss.com>, <wynnlasvg.com>, <wynnlasvgs.com>, <wynnlasvgss.com>, <wynnlasvs.com>, <wynnlav.com>, <wynnlvegass.com>, <wynnlvgas.com>, and <wynnlvgs.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 29, 2022
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