Las Vegas Sands Corp. v. bnb hero
Claim Number: FA2209002014384
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Michael J. McCue, Nevada, USA. Respondent is bnb hero (“Respondent”), Alabama, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sands.website>, registered with Hostinger, UAB.
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 Forum electronically on September 30, 2022; Forum received payment on September 30, 2022.
On October 3, 2022, Hostinger, UAB confirmed by e-mail to Forum that the <sands.website> domain name is registered with Hostinger, UAB and that Respondent is the current registrant of the name. Hostinger, UAB has verified that Respondent is bound by the Hostinger, UAB 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 October 5, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 25, 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@sands.website. Also on October 5, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 1, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 name be transferred from Respondent to Complainant.
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. Its original Sands Hotel in Las Vegas, Nevada, became famous, attracting numerous celebrities and serving as the backdrop and setting for several famous Hollywood films, including the original “Ocean’s Eleven” movie. Complainant asserts rights in the SANDS mark based upon its registration in the United States in 2010. The mark is registered elsewhere around the world and it is well known.
Complainant alleges that the disputed domain name is confusingly similar to its SANDS trademark because it incorporates the mark in its entirety, merely adding the generic top-level domain names (“gTLD”) “.website”.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s SANDS mark and is not commonly known by the disputed domain name. 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: the resolving website mimics Complainant’s legitimate website, displaying Complainant’s mark and logo and copyright-protected content copied from Complainant’s legitimate website.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because it is used to attract Internet users for commercial gain. Respondent had actual notice of Complainant’s rights in the SANDS mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark SANDS dating back to 2010 and uses it to operate resorts around the world.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain names resolves to a website that mimics Complainant’s legitimate website, displaying Complainant’s mark and logo and content copied from Complainant’s legitimate website.
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 name incorporates Complainant’s SANDS mark in its entirety, merely adding the “.website” gTLD. This is not sufficient to distinguish the disputed domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). Thus the Panel finds that the disputed domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s 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 “bnb hero”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
Both the disputed domain name itself, and the content of the resolving website, falsely suggest that they are associated with the Complainant. That is not a fair or legitimate use of the disputed domain name. Indeed, according to paragraph 2.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “Fundamentally, a respondent’s use of a domain name will not be considered ‘fair’ if it falsely suggests affiliation with the trademark owner …”. See 201 Folsom Option JV, L.P. and 201 Folsom Acquisition, L.P. v. John Kirkpatrick, D2014-1359 (WIPO, Oct. 28, 2014). Consequently the Panel finds that Respondent has failed to use the disputed domain name to make bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.
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 name.
Indeed, consumers visiting the 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.”). Thus the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays an image of Complainant’s well known credit card, material from Complainant’s legitimate website, and the URL of 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sands.website> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 2, 2022
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