Wynn Resorts Holdings, LLC v. Not
Claim Number: FA2210002015624
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Peter H. Ajemian of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is Not (“Respondent”), Viet Nam.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wynn08bet.com>, <wynn08bet.biz>, <wynn08bet.org>, <wynn08bet.info>, <wynn08bet.net>, <wynn08bet.pro>, (‘the Domain Names’) registered with NameCheap, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on October 11, 2022; Forum received payment on October 11, 2022.
On October 13, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <wynn08bet.com>, <wynn08bet.biz>, <wynn08bet.org>, <wynn08bet.info>, <wynn08bet.net>, <wynn08bet.pro> 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 October 17, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 7, 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@wynn08bet.com, postmaster@wynn08bet.biz, postmaster@wynn08bet.org, postmaster@wynn08bet.info, postmaster@wynn08bet.net, postmaster@wynn08bet.pro. Also on October 17, 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 14, 2022 , pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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 Names be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant owns the trade mark WYNN registered, inter alia, in the USA for casino services with first use in commerce recorded as 2005.
The Domain Names registered in 2022 are confusingly similar to the Complainant’s trade mark adding only the generic numbers ‘08’, the generic word ‘bet’ and a gTLD none of which are sufficient to prevent said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Names, is not commonly known by the Domain Names and is not authorized by the Complainant.
The Domain Names have been pointed to sites offering competing gaming services using the Complainant’s mark in its logo form as a masthead. This is not a bona fide offering of goods or services or a legitimate noncommercial fair use. It is registration and use in bad faith causing confusion amongst Internet users and disrupting the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trade mark WYNN registered, inter alia, in the USA for casino services with first use in commerce recorded as 2005.
The Domain Names registered in 2022 have been pointed to a site offering competing gaming services using the Complainant’s mark in its logo form as a masthead appearing to be an official site of the 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 Domain Names consists of the Complainant's WYNN mark (which is registered, inter alia, in the USA for casino services with first use recorded as 2005), the generic number ‘08’, the generic word ‘bet’ and one of the gTLDs .com, .net. ,pro, .info, .biz or .org.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). Accordingly the Panel holds that the addition of the generic term ‘bet’ to the Complainant’s trade mark in the Domain Names does not prevent confusing similarity between each of the Domain Names and the Complainant’s mark.
Previous panels have also found confusing similarity when a respondent merely adds generic numbers to a Complainant's mark. See Nintendo of Am., Inc. v. Lizmi, FA 94329 (Forum Apr. 24, 2000). Accordingly the Panel holds that the addition of the generic number ‘08’ to the Complainant’s trade mark in the Domain Names does not prevent confusing similarity between each of the Domain Names and the Complainant’s mark.
A gTLD does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Names are each confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Respondent is not authorized by the Complainant and does not appear to be commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The web site that was attached to the Domain Names used the Complainant’s mark in its logo form as a masthead to offer competing services. The Panel finds this use was deceptive and confusing. As such it could not amount to the bona fide offering of goods and services. (See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.) See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”). The use of the Domain Names was commercial so cannot have been legitimate noncommercial or fair use.
The Respondent has not responded to the Complaint or provided any explanation to counter the prima facie case put forward by the Complainant and set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Names in relation to the Respondent’s site was confusing and disruptive in that visitors to the site might reasonably have believed it was connected to or approved by the Complainant as it offered competing services under the Complainant’s mark and logo as a masthead.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant. (See 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 Allianz of AM. Corp v Bond, FA 680624 (Forum June 2, 2006)(finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wynn08bet.com>, <wynn08bet.biz>, <wynn08bet.org>, <wynn08bet.info>, <wynn08bet.net>, <wynn08bet.pro> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: 14 November, 2022
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