Las Vegas Sands Corp. v. hu luo / lewansi / theones
Claim Number: FA2208002006834
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Michael J. McCue, Nevada, USA. Respondent is hu luo, lewansi / theones theones, theones (“Respondent”), Japan.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <marinabaysands-sgp.com>, <marinabaysands.shop>, <marinaabaysands.com>, <marinabaysandz.com>, <marinebaysands.com>, <marinabaysandssales.com>, <marinabaysandco.com>, registered with NameCheap, 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 2, 2022; the Forum received payment on August 2, 2022.
On August 3, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <marinabaysands-sgp.com>, <marinabaysands.shop>, <marinaabaysands.com>, <marinabaysandz.com>, <marinebaysands.com>, <marinabaysandssales.com>, <marinabaysandco.com> 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 16, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 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@marinabaysands-sgp.com, postmaster@marinabaysands.shop, postmaster@marinaabaysands.com, postmaster@marinabaysandz.com, postmaster@marinebaysands.com, postmaster@marinabaysandssales.com, postmaster@marinabaysandco.com. Also on August 16, 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 September 13, 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.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, there are two Respondents: “hu luo, lewansi” and “theones theones, theones”. Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. In support of this allegation it states:
a) At the time [the Complaint was filed], five of the websites had the same identical fake Marina Bay Sands webpage, utilizing the MARINA BAY SANDS and THE SHOPPES AT THE MARINA BAY SANDS trademarks used by Complainant in connection with its Marina Bay Sands integrated resort.
b) Five of the seven domains feature a fake Marina Bay Sands shopping webpage, with an identical layout.
c) Five of the seven websites contained headers stating “© 2022 The Shoppes at Marina Bay Sands.”
d) The domains use similar naming conventions: each incorporates use of the MARINA BAY SANDS trademark, along with either a typographical error, a geographic signifier, or a generic top level domain.
e) The domain names <marinabaysands-sgp.com> and <marinabaysands.shop> were both created on the same day, April 22, 2022.
f) The domain name <marinaabaysands.com> was registered on May 4, 2022, a week and a half after the <marinabaysands-sgp.com> and <marinabaysands.shop> domains.
g) The <marinaabaysands.com> website, registered by Respondent theones, redirects to the <marinabaysands.shop> domain, registered by Respondent hu luo.
h) The domain names <marinabaysandz.com> and <marinabaysandco.com> were both registered on May 9, 2022, five days after the <marinaabaysands.com> domain, using the same domain registrar and using the same privacy service.
i) The domain name <marinabaysandssales.com> was registered on May 31, 2022, three weeks after the <marinabaysandz.com> and <marinabaysandco.com> domains, using the same domain registrar and using the same privacy service.
j) The domain name <marinebaysands.com> was registered on June 14, 2022, two weeks after the <marinabaysandssales.com> domain, using the same domain registrar and using the same privacy service.
k) Both Respondents share the same city and province names (ie. Fuzhou, Fujian), but one indicates it is in China while the other falsely indicates that it is in Japan.
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 that the domain names are registered by the same domain name holder.”
The domain names <marinabaysands-sgp.com> and <marinabaysands.shop> were registered by “hu luo, lewansi”; the other disputed domain names were registered by “theones theones, theones”. The Panel finds that all the disputed domain names are under common control as the websites displayed at the domains registered by both Respondents are identical and mimic Complainant’s legitimate website, purporting to offer for sale the same products that Complainant offers for sale on its legitimate website. This is sufficient to find that the domain names were registered by the same domain name holder. See The Valspar Corporation v. Zhou Zhiliang / zhouzhiliang / Zhiliang Zhou / Eric Chow / Visspa Ltd., FA100800133934 (Forum Sept. 28, 2010); see also BBY Solutions, Inc. v. White Apple / Dev Kumar, FA1805001787251 (Forum June 20, 2018).
Consequently, the Panel will rule on all seven contested domain names, and the three registrants are collectively referred to as “Respondent”.
A. Complainant
Complainant states that owns and operates world-renowned integrated resorts in various locations, including Macau and Singapore. It currently operates the Venetian Macao, Sands Macao, The Londoner Macao, The Plaza Macao and Four Seasons Hotel Macao, and The Parisian Macao; and the Marina Bay Sands in Singapore. Complainant asserts rights in the MARINA BAY SANDS mark based upon its registration in the United States in 2013. The mark is registered elsewhere around the world and it is well known.
Complainant alleges that the disputed domain names are confusingly similar to its MARINA BAY SANDS trademark because they incorporate the mark (or a misspelling of the mark), merely adding a hyphen, the three-letter country code “SGP”, and/or generic terms such as “SALES” or “CO”, and the generic top-level domain names (“gTLD”) “.com” or “.shop”.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain names. Respondent is not licensed or authorized to use Complainant’s MARINA BAY SANDS mark and is not commonly known by the disputed domain names. Respondent does not use the disputed domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent attempts to pass off as Complainant: five of the resolving websites mimic Complainant’s legitimate website, purporting to offer for sale the same products that Complainant offers for sale on its legitimate website.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith because they are used to attract Internet users for commercial gain. Respondent had actual notice of Complainant’s rights in the MARINA BAY SANDS mark prior to registration of the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark MARINA BAY SANDS dating back to 2013 and uses it to operate resorts around the world.
The disputed domain names were registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Five of the disputed domain names resolve to web sites that mimic Complainant’s legitimate website and purport to offer for sale the same products that are offered for sale on Complainant’s legitimate website. Two of the disputed domain names are not being used. Some of the WHOIS information is false.
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 MARINA BAY SANDS mark (or a misspelling of the mark), merely adding a hyphen, the three-letter country code “SGP”, and/or generic terms such as “SALES” or “CO”, and the generic top-level domain names (“gTLD”) “.com” or “.shop”. Such changes are not sufficient to distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”); see also Doosan Corporation v. philippe champain, FA 1636675 (Forum Oct. 13, 2015) (finding that geographic designations or terms descriptive of a complainant’s business operations do not remove a domain name from the realm of confusing similarity.) see also Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding the <twitcch.tv> domain name confusingly similar to the TWITCH TV trademark because the domain name consisted of a common misspelling of the mark by merely adding the letter “c”); see also 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 Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant’s marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain (“gTLD”) ‘.com.’”). Therefore, the panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s MARINA BAY SANDS mark. Respondent is not commonly known by the disputed domain names: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information for the disputed domain name lists the registrant as “hu luo, lewansi / theones theones, theones.” Therefore the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
Complainant does not make any specific allegations regarding the use of the domain names <marinebaysands.com> and <marinabaysandco.com>. As noted above, the Panel need not take into account allegations that are not supported by evidence. See also by analogy Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum July 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).
However, according to paragraph 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), a Panel may conduct limited factual research regarding disputed domain names:
Noting in particular the general powers of a panel articulated inter alia in paragraphs 10 and 12 of the UDRP Rules, it has been accepted that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision.
This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name, consulting historical resources such as the Internet Archive (www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias (e.g., Wikipedia), or accessing trademark registration databases.
The disputed domain names in question are not being used. Further, a search in the Internet Archive indicates that the disputed domain names in question have not been used since they were registered.
Failure to make an active use of a domain name demonstrates that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent is not using the disputed domain names in question for a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or 4(c)(iii).
Complainant presents evidence showing that the resolving websites for the other five disputed domain names mimic Complainant’s legitimate website and purport to offer for sale the same products that Complainant offers for sale on its legitimate website. This is not a bona fide offering of goods or services per Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Thus, the Panel finds that Respondent fails to use these five domain names to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests the 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, two the disputed domain names are not being used while five are used to mimic Complainant’s legitimate website.
According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case, Complainant’s trademark is well known. It is difficult to envisage any use of the disputed domain name that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) (“Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy”); see also Singapore Airlines Ltd. v. European Travel Network, D2000-0641 (WIPO Aug. 29, 2000) (where selection of disputed domain name is so obviously connected to complainant’s well-known trademark, use by someone with no connection with complainant suggests opportunistic bad faith); see also Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int’l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040 (WIPO Aug. 19, 2014) (“The Panel finds that the [WESTIN] Marks are not such that could legitimately be adopted by traders other than for the purpose of creating an impression of an association with Complainant. Thus, the Panel concludes that the disputed domain names were registered in bad faith”).
There has been no response to the Complaint and Respondent used a privacy serve, that is, it attempted to conceal its identity. Furthermore, the WHOIS information is false for some of the disputed domain names. Finally, Respondent uses the other disputed domain names to mimic Complainant’s legitimate website. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain names in question are not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
Also as already noted, five of the disputed domain names resolve to websites that mimic Complainant’s legitimate website and purport to offer for sale the same products that Complainant offers for sale on its legitimate website. Consumers visiting those resolving website are likely to be confused as to whether Respondent and/or its website is affiliated in some way with Complainant; and/or the disputed domain name or the associated website are endorsed, authorized, or sponsored by Complainant, none of which are true. This is a form of bad faith use of the disputed domain name. See Bank of America Corp. v. Out Island Props., Inc., FA 154531 (Forum June 3, 2003) (bad faith established “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website.”); 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).”). Accordingly, the Panel finds bad faith registration and use per Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain names with actual knowledge of Complainant’s mark: five of the resolving websites display Complainant’s mark and logo and mimic Complainant’s legitimate website. 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 registration and use under Policy ¶ 4(a)(iii).
Moreover, Respondent has engaged in typosquatting by registering domain names that are misspelling of Complainant’s mark. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). As such, the Panel finds bad faith typosquatting under Policy ¶ 4(a)(iii).
Finally, the WHOIS information for some of the disputed domain names is false (the country is given as Japan, but the city is not a city in Japan). This can evince bad faith registration and use under Policy ¶ 4(a)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”); see also ABB Asea Brown Boveri Ltd v. Global Mgr, FA 1702001716963 (Forum Mar. 30, 2017) (“Complainant contends that Respondent provided false contact information while registering the disputed domain. Registering a confusingly similar domain name using false contact information can evince bad faith registration.”); see also j2 Global Canada, Inc. and Landslide Technologies, Inc. v. Vijay S Kumar/Strategic Outsourcing Services Pvt Ltd, FA 1411001647718 (Forum Jan. 4, 2016) (“False or misleading contact information indicates bad faith registration and use.”); see also Chevron Intellectual Property LLC v. Phillip Thomas/Chevron Pacific, FA 1504001615524 (Forum May 29, 2015) (“Complainant’s use of false registration data and its unexplained redirection of the disputed domain name to Complainant’s own website are further indications of such bad faith.”); see also McDonald’s Corp. v. Holy See, FA 0304000155458 (Forum June 27, 2003) (“The Panel finds that Respondent provided false contact information in the registration certificates and that such actions, even though not specifically enumerated in the Policy, may form the basis for a finding of bad faith registration and use.”); see also Mars, Incorporated v. RaveClub Berlin, FA 0106000097361 (Forum July 16, 2001) (providing false registration and contact information for infringing domain names evidenced Respondent’s bad faith). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in 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 <marinabaysands-sgp.com>, <marinabaysands.shop>, <marinaabaysands.com>, <marinabaysandz.com>, <marinebaysands.com>, <marinabaysandssales.com>, and <marinabaysandco.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 13, 2022
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