DECISION
United Auburn Indian Community v. Max Harlin / Pure Tonic Marketing Ltd
Claim Number: FA2402002085286
PARTIES
Complainant is United Auburn Indian Community ("Complainant"), represented by Lindsey Williams of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is Max Harlin / Pure Tonic Marketing Ltd ("Respondent"), Seychelles.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thunderamphitheatre.com>, 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.
Alan L. Limbury, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on February 23, 2024. Forum received payment on February 23, 2024.
On February 23, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <thunderamphitheatre.com> 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 February 29, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 20, 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@thunderamphitheatre.com. Also on February 29, 2024, 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 March 21, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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, United Auburn Indian Community, is a federally recognized Indian tribe with a principal place of business in Lincoln, California. Complainant is the owner and operator of the well-known, luxury resort hotel and casino Thunder Valley Casino Resort. In addition to providing casino and gaming services to its patrons, Complainant also provides live entertainment services at Thunder Valley Casino Resort, including music, comedy, and other performances, at its indoor theater called The Venue. The Venue recently replaced the resort's prior popular 5000 seat outdoor amphitheater in February 2023, following a very successful twelve-year period of hosting concerts and other entertainment events.
Complainant has rights in several THUNDER VALLEY CASINO and THUNDER VALLEY CASINO RESORT marks and other THUNDER-formative marks through trademark registrations with the United States Patent and Trademark Office ("USPTO"). Respondent's <thunderamphitheatre.com> domain name is confusingly similar to Complainant's marks.
Respondent lacks rights or legitimate interests in the <thunderamphitheatre.com> domain name since Respondent is not licensed or authorized to use Complainant's marks and there is no evidence to suggest that Respondent is commonly known by the domain name. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the domain name resolves to a website which creates a false association with Complainant and is likely to mislead consumers into believing that the domain name originates with Complainant or is approved, sponsored, affiliated, associated with or supplied by Complainant, when it is not. Further, because Complainant no longer utilizes an outdoor amphitheater, having transitioned its entertainment services to an indoor venue, the information displayed on Respondent's website falsely suggests that Complainant's prior amphitheater remains open.
Respondent registered the <thunderamphitheatre.com> domain name in bad faith with actual knowledge of Complainant's rights in the THUNDER VALLEY CASINO and THUNDER VALLEY CASINO RESORT marks and uses it in bad faith to capture Internet users who accidentally misspell "amphitheater" when searching for Complainant's website and to compete with Complainant and profit from the entertainment services offered in connection with Complainant's marks. Further, Respondent has engaged in "typosquatting" by the deliberate misspelling of "amphitheater" in the domain name while using the correct spelling throughout Respondent's website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant has established all the elements entitling it to relief.
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."
(i) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) 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 as 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').
Identical and/or Confusingly Similar
Complainant has shown that it has rights in the THUNDER VALLEY CASINO and THUNDER VALLEY CASINO RESORT marks through registrations with the USPTO (e.g., THUNDER VALLEY CASINO Reg. No. 2872370, registered on August 10, 2004 and THUNDER VALLEY CASINO RESORT Reg. No. 3959679, registered on May 10, 2011). Although the domain name <thunderamphitheatre.com> does not include the words "valley", "casino" or "resort", it is clear from the use to which the domain name is put, as described below, that Respondent considers it to be confusingly similar to Complainant's marks. Accordingly, the Panel finds the word "THUNDER" in the domain name to be the dominant element of Complainant's marks and Respondent's <thunderamphitheatre.com> domain name to be confusingly similar to those marks. The inconsequential ".com" generic top-level domain ("gTLD") may be ignored. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <thunderamphitheatre.com> domain name was registered on January 17, 2020, many years after Complainant registered its THUNDER VALLEY CASINO and THUNDER VALLEY CASINO RESORT marks and some two years before Complainant's popular outdoor amphitheater closed. The domain name resolves to an active website which prominently displays at the top of each page "THUNDER VALLEY AMPHITHEATER AT THUNDER VALLEY RESORT & CASINO" in connection with the resale of tickets for events at Complainant's entertainment venue, which Complainant says are unauthorized. There is also a photograph of Complainant's previous amphitheater venue, displaying Complainant's THUNDER VALLEY CASINO RESORT mark.
These circumstances, together with Complainant's assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <thunderamphitheatre.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA 1849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel notes that the domain name uses the English spelling of the word "amphitheatre" while the website uses both the English spelling and the American English spelling "amphitheater", for example when referring to "Thunder Valley Amphitheater Tickets". This supports Complainant's contention that the website is likely to mislead consumers into believing that the domain name originates with or is approved by Complainant and also supports the Panel's conclusion that Internet users are likely to regard the domain name as confusingly similar to Complainant's marks.
Respondent has attempted to avoid creating such a false association with Complainant through a disclaimer, which states:
"Thunder Valley Casino Amphitheatre
This site is not affiliated with or connected to Thunder Valley Casino Resort or Thunder Valley Amphitheater. This website acts as an independent guide linking to genuine resale tickets for all upcoming events at the Thunder Valley Casino Amphitheatre. Please view the disclaimer page."
The disclaimer page states:
"Thunder Valley Casino Resort owns and operates Thunder Valley Amphitheater in Lincoln, California.
This website is independently operated and not operated by Thunder Valley Casino Resort or Thunder Valley Amphitheater.
This website is independently operated and makes no attempts to imitate Thunder Valley Casino Resort and/or Thunder Valley Amphitheater. This website is in no way affiliated with or connected to Thunder Valley Casino Resort and/or Thunder Valley Amphitheater…"
However, the Panel finds that Respondent's prominent use of Complainant's marks throughout the website, including in the banner image at the top of each webpage, as well as several pages dedicated to Complainant's casino and entertainment operations, goes beyond a minimal nominative use of those marks in a manner necessary to communicate Respondent's ticket resale services to the public. See The Royal Edinburgh Military Tattoo Limited v. Identity Protection Service, Identity Protect Limited/Martin Clegg, WM Holdings, Case No. D2016-2290 (WIPO Jan. 5 2017) and the cases there cited.
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, i.e.
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant's THUNDER VALLEY CASINO and THUNDER VALLEY CASINO RESORT marks when Respondent registered the <thunderamphitheatre.com> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website, by creating a likelihood of confusion with Complainant's marks as to the source of Respondent's website and of the services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Since Respondent is located in Seychelles, where English spelling is more likely to be used than American English spelling, the Panel finds it unnecessary to consider whether the domain name constitutes typosquatting.
Complainant has established this element.
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 <thunderamphitheatre.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: March 24, 2024
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