DECISION

 

Las Vegas Sands Corp. v. B B / fa cai 88

Claim Number: FA2401002080320

 

PARTIES

Complainant is Las Vegas Sands Corp. ("Complainant"), represented by Michael J. McCue of LEWIS ROCA ROTHGERBER CHRISTIE LLP, Nevada, USA. Respondent is B B / fa cai 88 ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <hksandsmacao0.com> and <hksandsmacao1.com>, registered with Gname.com Pte. Ltd.

 

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.

 

Charles A. Kuechenmeister, Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 22, 2024; Forum received payment on January 22, 2024.

 

On February 27, 2024, Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <hksandsmacao0.com> and <hksandsmacao1.com> domain names are registered with Gname.com Pte. Ltd. and that Respondent is the current registrant of the names. Gname.com Pte. Ltd. has verified that Respondent is bound by the Gname.com Pte. Ltd. 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").

 

Complainant submitted an Amended Complaint and Annexes on March 1, 2024.

 

On March 4, 2024, Forum served the Amended Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint setting a deadline of March 25, 2024 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@hksandsmacao0.com, postmaster@hksandsmacao1.com. Also on March 4, 2024, the Chinese and English 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 in Chinese and English.

 

On March 26, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister as Panelist.

 

On April 1, 2024 the Panel issued a Request for Additional Submission to Complainant. Complainant responded to that Request on April 4, 2024.

 

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 a Response from Respondent.

 

RELIEF SOUGHT

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

 

PRELIMINARY ISSUES:

Multiple Domain Names

The Amended Complaint relates to two domain names. Paragraph 3(c) of the Rules provides that a "complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder."  Complainant alleges that both domain names are operated by the same person or entity using different aliases. The WHOIS information furnished to Forum by the registrar lists the named Respondent as the registrant of both domain names and gives the same email address and telephone number for that registrant.  Also, the websites resolving from both domain names are very nearly identical to each other in general appearance and content. Both domain names were registered with the same registrar on the same day (WHOIS printouts submitted as Amended Complaint Exhibits 7 and 8).  On this evidence, the Panel finds that both domain names are registered to the same person or entity or are under common control and will proceed as to both of them. References to "Respondent" in this Decision, even though in the singular, refer to both named Respondents.

 

Language of The Proceeding

According to the Registrar, the registration agreement for the domain names is written in Chinese. Rule 11(a) provides that the language of the proceedings is the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the case. Complainant filed its Amended Complaint in English and Chinese. It does not request that these proceedings be conducted in English but the Panel is not proficient in Chinese and will consider whether to conduct these proceedings in English. Factors which previous panels have seen as important include evidence showing that the respondent can understand the language of the complaint, the language of the domain name, the content on any web pages resolving from the domain name, prior correspondence between the parties, and potential unfairness or unwarranted delay in ordering translation of the pleadings and the Decision. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.5.1, The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language), Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, "It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.").

 

In this case, both domain names are         written in English and target a U.S.-based firm. Although the websites to which they resolve contain very little textual material (numerals and the terms "VIP" and "GO") those terms are written in English (screenshots of websites submitted as Amended Complaint Exhibits 5 and 6). This suggests that Respondent is proficient in English. Further, while Complainant filed its Amended Complaint in English, the Written Notice of the Complaint, written in both Chinese and English, was served upon Respondent in accordance with Rules 1 and 2. Respondent has not submitted a Response or any indication that it desires to participate in this proceeding, in Chinese or otherwise. Under these circumstances the Panel finds that the additional time and expense of proceeding in Chinese would be unwarranted inasmuch as the only party who might benefit from that has declined to participate.  Adidas AG v. Daehyeon Kim, WIPO Case No. 2013-1904 ("In the present case, the Respondent waived any objection to proceeding in English by failing to respond to the Center's notice sent in both English and Korean. The Panel also notes that the disputed domain name contains the English word, "outdoor". Moreover, the Panel notes that the Respondent registered the disputed domain name in connection with the ".com" generic Top-Level Domain ("gTLD"), which primarily targets English-speaking Internet users.").  For the reasons above set forth, this proceeding will be conducted in English.

PARTIES' CONTENTIONS

A. Complainant

Complainant owns and operates integrated resorts in Macau and Singapore and has been operating integrated resorts under the SANDS mark since 1952. It has rights in the SANDS mark based upon its registration of that mark with the United States Patent and Trademark Office (USPTO) and other governmental trademark agencies. Respondent's domain names are identical or confusingly similar to Complainant's mark. They fully incorporate the mark, merely adding the letters "HK" (an abbreviation for Hong Kong), the geographically descriptive term Macao, the numerals 0 and 1 and the ".com" generic top level domain (gTLD).

 

Respondent has no rights or legitimate interests in the domain names. It is not using them in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead is using them to drive internet traffic to Respondent's websites which impersonate and compete with Complainant, and Respondent is not commonly known by the domain names.

 

Respondent registered and uses the domain names in bad faith. It registered the domain names with actual knowledge of Complainant and its mark, it registered them while itself having no connection with Complainant or its mark, and it is using them to attract for commercial gain Internet users to its website by creating confusion with Complainant's mark as to the source, sponsorship, affiliation or endorsement of its websites.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:

 

(1)       the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(2)       the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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 as true unless the evidence is clearly contradictory. Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true). Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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"), WIPO Overview 3.0, at ¶ 4.3 ("In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent's default—a complainant has failed to prove its case.").

 

The Panel finds as follows with respect to the matters at issue in this proceeding.

 

Identical and/or Confusingly Similar

The SANDS mark was registered to Complainant with the USPTO (Reg. No.3,734,615) on January 5, 2010 (USPTO registrations certificate included in Complainant's response to the Panel's request). Complainant's registration of its mark with the USPTO establishes its rights in that mark for the purposes of Policy ¶ 4(a)(i). DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) ("Complainant's ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i)."), 

 

Respondent's domain names are identical or confusingly similar to Complainant's mark. They fully incorporate the SANDS mark, merely adding the letters "HK," the two-letter abbreviation for Hong Kong, the geographically descriptive term Macao, a numeral and a generic top-level domain ("gTLD"). These changes do not distinguish the domain names from Complainant's mark for the purposes of Policy ¶ 4(a)(i).  Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) ("A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them."), MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) ("The disputed domain name is confusingly similar to Complainant's mark as it wholly incorporates the CUB CADET mark before appending the generic terms 'genuine' and 'parts' as well as the '.com' gTLD."). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity "typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name."  Notwithstanding the changes described above, Complainant's mark is clearly recognizable within the domain names, and the domain names are likely to cause confusion.

 

Rights or Legitimate Interests

If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in a domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("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 an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests"). If a respondent fails to come forward with such evidence, the complainant's prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.

 

Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent's rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):

 

(i)                      Before any notice to the respondent of the dispute, the respondent's 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;

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

(iii)                      The respondent is 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 asserts that Respondent has no rights or legitimate interests in the domain names because (i) it is not using them in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead is using them to drive internet traffic to Respondent's websites which impersonate and compete with Complainant, and (ii) Respondent is not commonly known by the domain names. These allegations are addressed as follows:

 

Amended Complaint Exhibits 5 and 6 contain screenshots of pages of the websites resolving from the domain names. Both sites display the stylized SANDS mark and sunburst logo, both of which are registered to Complainant with the USPTO, and a picture of Complainant's Macau property at the top of the pages and purport to offer online and casino gaming services. Respondent's web pages clearly represent that they are sponsored or at a minimum approved by Complainant. Respondent is passing off as Complainant or an affiliate and to the extent that Respondent actually provides the gaming services advertised it is in direct competition with Complainant.  Using a confusingly similar domain name to impersonate and pass off as and sell the same types of services as a complainant does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or as a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii). Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) ("The usage of Complainant's NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material  is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name."), Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) ("Respondent uses the [disputed] domain name to divert Internet users to Respondent's website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).").

 

The information furnished to Forum by the registrar lists the named Respondent as the registrant of the domain names. Those names bear no resemblance to the domain names. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a name other than the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no response has been filed, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent's use of the same), 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 Panel is satisfied that the Respondent has not been commonly known by the domain names.

 

Complainant has made its prima facie case. On the evidence discussed above, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the domain names.

 

Registration and Use in Bad Faith

Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:

 

(i)                      circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or

(ii)                      the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii)                      the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv)         by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's web site 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 web site or location or of a product of service on the respondent's web site or location.

 

The evidence of Respondent's conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use, based upon one or more of the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, Respondent is clearly using the confusingly similar domain names to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its websites, as described in Policy ¶ 4(b)(iv). The evidence does not disclose whether Respondent is actually offering the gaming services advertised on its websites or fraudulently representing that it does, collecting money from the customer and then not delivering the services. Regardless which scenario is present here, its conduct fits squarely within the circumstances described in Policy ¶ 4(b)(iv) and is manifest evidence of bad faith registration and use. Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) ("The Panel agrees that Respondent's use of the website to display products similar to Complainant's, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).").

 

Next, as discussed above, Respondent is using the domain names to pass off as Complainant or an authorized affiliate. This does not fit precisely within any of the scenarios listed in Policy ¶ 4(b) but that paragraph recognizes that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955. The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and passing off as a complainant, in and of itself, is evidence of bad faith. Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith where "Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant's own website in order to confuse users into believing that Respondent is Complainant or is otherwise affiliated or associated with Complainant.").

 

Also, Respondent registered and is using the domain names, which incorporate and are confusingly similar to the SANDS mark, but Respondent has no legitimate connection with that mark or its owner, the Complainant. In light of the nonexclusive nature of Policy ¶ 4(b), the use of a domain name that is confusingly similar to a trademark with which the respondent has no connection is evidence of opportunistic bad faith. Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) ("[T]he fact that Respondent chosen [sic] to register a well-known mark to which [it] has no connections or rights indicates that [it] was in bad faith when registering the domain name at issue."), Google LLC v. Noboru Maruyama / Personal, FA 2001001879162 (Forum March 3, 2020) ("the registration and use of domain name that is confusingly similar to a trademark with which the respondent has no connection has frequently been held to be evidence of bad faith.").

 

Finally, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the domain names in December 2023 (WHOIS printouts submitted as Amended Complaint Exhibits 7 and 8 show creation dates). In order to pass off as Complainant or an affiliate on its websites, using its stylized mark and logo, Respondent had to have had actual knowledge of Complainant and its mark. Given the non-exclusive nature of Policy ¶ 4(b), registering a confusingly similar domain name with actual knowledge of a complainant's rights in its mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii).  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).

 

For the reasons set forth above, the Panel finds that Respondent registered and is using the domain names in bad faith within the meaning of Policy ¶ 4(a)(iii).

 

DECISION

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

 

Accordingly, it is Ordered that the <hksandsmacao0.com> and <hksandsmacao1.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

Charles A. Kuechenmeister, Panelist

April 4, 2024