Wynn Resorts Holdings, LLC v. Grant Leingang / BLVCK DIVMOND, LLC
Claim Number: FA2301002029311
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Peter H. Ajemian of Brownstein Hyatt Farber Schreck, US. Respondent is Grant Leingang / BLVCK DIVMOND, LLC (“Respondent”), Indiana.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wynnresorts.email> and <wynnlasvegas.email>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on January 26, 2023; Forum received payment on January 26, 2023.
On January 27, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <wynnresorts.email> and <wynnlasvegas.email> 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 January 31, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 21, 2023 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@wynnresorts.email, postmaster@wynnlasvegas.email. Also on January 31, 2023, 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 February 25, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant is a Nevada-based gambling and gaming company with global reach.
Complainant claims rights in the WYNN RESORTS and WYNN LAS VEGAS marks through registration with the United States Patent and Trademark Office (“USPTO”).
The at-issue domain names <wynnresorts.email> and <wynnlasvegas.email> are confusingly similar to Complainant’s marks because they wholly incorporate Complainant’s registered marks, differing only through the addition of the “.email” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the at-issue domain names. Respondent is not commonly known by either domain name, nor has Complainant authorized Respondent to use its registered marks in any way. Additionally, Respondent fails to use the at-issue 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 to host third-party pay-per-click advertisements.
Respondent registered and uses the at-issue domain names in bad faith. Respondent uses each domain name to financially benefit by creating a likelihood of confusion. Respondent had actual or constructive knowledge of Complainant’s rights in the relevant marks prior to registration of the disputed domains.
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 uses the at-issue domain names to address webpages containing pay-per-click advertisements.
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 each confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registrations for <wynnresorts.email> and for <wynnlasvegas.email> establishes Complainant’s rights in such marks 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 each contain of one of Complainant’s trademarks and conclude with the “.email” top level domain name. The differences between either <wynnresorts.email> or <wynnlasvegas.email>and Complainant’s WYNN trademarks are each insufficient to distinguish either domain name from Complainant’s trademarks for the purposes of the Policy. Therefore, the Panel finds that Respondent’s <wynnresorts.email> and <wynnlasvegas.email> domain names are each confusingly similar to Complainant’s WYNN RESORTS or WYNN LAS VEGAS trademark pursuant to Policy ¶ 4(a)(i). See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s 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 each at-issue domain name. Respondent is not authorized to use Complainant’s trademarks 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 either 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 “Grant Leingang / BLVCK DIVMOND, LLC” and the record before the Panel contains no evidence tending to suggest that Respondent is commonly known by either <wynnresorts.email> or <wynnlasvegas.email>. The Panel therefore concludes that Respondent is not commonly known by <wynnresorts.email> or <wynnlasvegas.email> 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 uses the <wynnresorts.email> and <wynnlasvegas.email> domain names to address webpages featuring pay-per-click hyperlinks to third-parties at least some of which compete with Complainant. Respondent’s use of the at-issue domain names in this manner fails to suggest either a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
As discussed below without limitation, bad faith 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 use of the at-issue domain names to address webpages displaying pay-per-click links shows Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv). Notably, the webpages feature links to commercial websites offering hotel and casino services which compete with Complainant’s offering. Such usage is disruptive to Complainant’s business and demonstrates that Respondent is attempting to attract internet users for commercial gain by trading off the Complainant’s trademarks. See Vivint, Inc. v. Online Management, FA1403001549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links); see also, MySpace, Inc. v. Myspace Bot, FA 672161 (Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
Moreover, Respondent had actual knowledge of Complainant’s rights in the WYNN RESORTS and WYNN LAS VEGAS marks when it registered <wynnresorts.email> and <wynnlasvegas.email>as a domain names. Respondent’s actual knowledge is evident from the notoriety of Complainant’s marks; from the fact that webpages addressed by the domain names display Complainant’s relevant trademarks; and from Respondent’s registration of multiple domain name containing Complainant’s trademarks. Respondent’s registration and use of the confusingly similar domain names with knowledge of Complainant’s rights in WYNN RESORTS and WYNN LAS VEGAS and thus in the at-issue domain names further shows Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Wynn Resorts Holdings, LLC v. Martinez, FA 1607001683318 (Forum Aug. 19, 2016) (finding that “due to the fame of the [WYNN marks], Respondent had actual knowledge of the mark and Complainant’s rights,” which supported a finding of bad faith).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wynnresorts.email> and <wynnlasvegas.email> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 25, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page