DECISION

 

Wynn Resorts Holdings, LLC v. Jaipak Koomwong

Claim Number: FA2310002066132

 

PARTIES

Complainant is Wynn Resorts Holdings, LLC ("Complainant"), represented by Peter H. Ajemian of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is Jaipak Koomwong ("Respondent"), Thailand.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <wynnlucky.org>, registered with Namecheap, Inc.

 

PANEL

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.

 

Debrett G. Lyons as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 13, 2023; Forum received payment on October 13, 2023.

 

On October 13, 2023, Namecheap, Inc. confirmed by e-mail to Forum that the <wynnlucky.org> domain name is registered with Namecheap, Inc. and that Respondent is the current registrant of the name. 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 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 9, 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@wynnlucky.org. Also on October 20, 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 November 10, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.       Complainant

Complainant asserts trademark rights in WYNN.  Complainant holds a national registration for that trademark.  Complainant submits that the disputed domain name is confusingly similar to its trademark.  

 

Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name since it uses the domain name to promote services identical to those offered by Complainant under its trademark.

 

Complainant alleges that Respondent registered and used the disputed domain name in bad faith.

 

B.       Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The factual findings pertinent to the decision in this case are that:

 

1.       Complainant provides casino and gaming services by reference, inter alia, to the trademark, WYNN;

2.       the trademark is registered with the United States Patent & Trademark Office ("USPTO") as Reg. No. 4,998,454, from July 15, 2012; and

3.       the disputed domain name was created on September 19, 2023, and resolves to a website which displays the trademark in connection with the provision of online casino gaming services.

 

DISCUSSION

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; 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").

 

Identical and/or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.

 

It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)).  Complainant therefore has rights since it provides proof of registration of the trademark WYNN with the USPTO, a national trademark authority.

 

For the purposes of comparison of the disputed domain name with the trademark, the gTLD, ".org" can be disregarded (see, for example, Am. Int'l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Forum Dec. 31, 2007)). The disputed domain name then differs from the trademark by addition of the descriptive/generic term, "lucky", having no distinguishing value. The Panel finds that the domain name is confusingly similar to the trademark (see, for example, Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) finding that "[w]here a relevant trademark is recognizable 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."; Wynn Resorts Holdings, LLC v. Martinez, FA 1683318 (Forum Aug. 16, 2016) (finding <wynnnightlife.com> to be confusingly similar to Complainant's WYNN mark).

 

Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

 

Rights or Legitimate Interests

Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:

 

(i)       before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii)        (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii)       you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

 

Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).

 

The name of the domain name owner does not carry any suggestion that Respondent might be commonly known by the domain name. There is no evidence that Respondent has any trademark rights of its own. Respondent's website bears Complainant's trademark and offers directly competitive services. The Panel accepts the assertion that this is without authorization. A prima facie case has been made (see, for example, Am. Int'l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant's mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).

 

The onus shifts to Respondent and in the absence of a Response, the Panel finds that Respondent has not discharged that onus and finds the Respondent has no rights or interests.

 

Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.  

 

Paragraph 4(b) of the Policy sets out four circumstances which are taken to be evidence of the registration and use of a domain name in bad faith if established.  The Panel finds that Respondent's conduct falls squarely under paragraph 4(b)(iv) which provides that:

 

"by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent's website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on the site or location."

 

The Panel has already found that the domain name is confusingly similar to the trademark. The resolving website exists for commercial gain. In terms of the Policy, the Panel finds that Respondent has used the disputed domain name to attract, for commercial gain, internet users to its website by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of that website (see, for example, Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003): "Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.").

 

The Panel finds that Complainant has satisfied the third and final element of the Policy.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <wynnlucky.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Debrett G. Lyons, Panelist

November 12, 2023