Wynn Resorts Holdings, LLC v. ming zhang
Claim Number: FA2306002049263
Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Peter H. Ajemian of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is ming zhang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wynn79.com>, <wynn80.com>, <wynn83.com>, <wynn85.com>, <wynn87.com>, and <wynn91.com>, (‘the Domain Names’) registered with Godaddy.Com, Llc.
The undersigned certifies that she has acted independently and impartially and to the best of 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 June 15, 2023; Forum received payment on June 15, 2023.
On June 16, 2023, Godaddy.Com, Llc confirmed by e-mail to Forum that the <wynn79.com>, <wynn80.com>, <wynn83.com>, <wynn85.com>, <wynn87.com>, <wynn91.com> 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 June 21, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 11, 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@wynn79.com, postmaster@wynn80.com, postmaster@wynn83.com, postmaster@wynn85.com, postmaster@wynn87.com, postmaster@wynn91.com. Also on June 21, 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 July 18, 2023 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 summarised as follows:
Through a wholly owned subsidiary 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 2023 are confusingly similar to the Complainant’s trade mark adding only generic numbers and the gTLD .com which are insufficient 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 authorised by the Complainant.
The Domain Names have been pointed to sites offering competing gaming services using the Complainant’s mark in its masthead. This is not a bona fide offering of goods or services or a legitimate non commercial 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.
Through a wholly owned subsidiary 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 2023 have been pointed to sites offering competing gaming services using the Complainant’s mark in its masthead.
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 each consists of the Complainant's WYNN mark (which is registered, inter alia, in the USA for casino services with first use recorded as 2005), a generic number and the gTLD .com.
Previous panels have found confusing similarity when a respondent merely adds a generic number to a Complainant's mark. See Nintendo of Am., Inc. v. Lizmi, FA 94329 (Forum Apr. 24, 2000).
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 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 authorised 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 Sept. 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 sites attached to the the Domain Names use the Complainant’s mark in their mastheads to offer competing services. The Panel finds this confusing with a likely risk of presumed affiliation where there is none. As such it cannot 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 is commercial so cannot be legitimate non commercial fair use.
The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or legitimate interests 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 sites is confusing and disruptive in that visitors to the sites might reasonably believe they are connected to or approved by the Complainant as they offer competing services under the Complainant’s mark used in their mastheads. The Complainant’s mark is well known for Casino services making it more likely than not that the Respondent knew about the Complainant and its rights, business and services and is targeting the Complainant with competing use.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web sites and services offered on them 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 <wynn79.com>, <wynn80.com>, <wynn83.com>, <wynn85.com>, <wynn87.com>, and <wynn91.com> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: July 18, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page