DECISION

 

Wynn Resorts Holdings, LLC v. TRI HUNG LUU

Claim Number: FA2502002141422

PARTIES

Complainant is Wynn Resorts Holdings, LLC ("Complainant"), represented by Peter H. Ajemian of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is TRI HUNG LUU ("Respondent"), Viet Nam.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <wynn155.com>, <wynn166.com>, <wynn199.com>, <wynn233.com>, <wynn255.com>, <wynn277.com>, <wynn288.com>, <wynn299.com>, <wynn311.com>, <wynn322.com>, <wynn355.com>, <wynn366.com>, <wynn377.com> and <wynn399.com> (collectively "Domain Names"), registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 21, 2025; Forum received payment on February 21, 2025.

 

On February 21, 2025, GoDaddy.com, LLC confirmed by e-mail to Forum that the <wynn155.com>, <wynn166.com>, <wynn199.com>, <wynn233.com>, <wynn255.com>, <wynn277.com>, <wynn288.com>, <wynn299.com>, <wynn311.com>, <wynn322.com>, <wynn355.com>, <wynn366.com>, <wynn377.com> and <wynn399.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 February 25, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 17, 2025 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@wynn155.com, postmaster@wynn166.com, postmaster@wynn199.com, postmaster@wynn233.com, postmaster@wynn255.com, postmaster@wynn277.com, postmaster@wynn288.com, postmaster@wynn299.com, postmaster@wynn311.com, postmaster@wynn322.com, postmaster@wynn355.com, postmaster@wynn366.com, postmaster@wynn377.com, postmaster@wynn399.com. Also on February 25, 2025, 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 18, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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 Names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant, Wynn Resorts Holdings, LLC, is a subsidiary of Wynn Resorts, Limited, which operates a series of luxury resorts and casinos in Las Vegas, Nevada and Macau, China.  Complainant has rights in the WYNN mark through its registration with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. 4,998,454, registered Jul. 12, 2016).  Respondent's Domain Names are identical or confusingly similar to Complainant's WYNN mark as they incorporate the mark in its entirety while adding the various numbers (such as "155" or "399") along with the ".com" generic top-level domain ("gTLD").

 

Respondent lacks rights and legitimate interests in the Domain Names. Respondent is not commonly known by the Domain Names, nor has Complainant authorized or licensed Respondent to use its WYNN mark in the Domain Names. Respondent does not use the Domain Names for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use. Instead, Respondent uses the Domain Names to pass off as Complainant and offer online gambling services that directly compete with Complainant's business or to host pay-per-click advertisements for services which compete with Complainant.

 

Respondent registered and uses the Domain Names in bad faith. Respondent uses the Domain Names to divert Internet users away from Complainant's business, which may invoke bad faith disruption and attraction to commercial gain. Finally, Respondent had actual knowledge of Complainant's rights in the WYNN mark at the time of registration given the use of the Domain Name for competing gaming services.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds trademark rights for the WYNN mark.  Each of the Domain Names is confusingly similar to Complainant's WYNN mark.  Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names in bad faith.

 

DISCUSSION

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 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").

 

Identical and/or Confusingly Similar

Complainant has rights in the WYNN mark based on registration of the mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. 4,998,454, registered Jul. 12, 2016). Registration of a mark with the USPTO sufficiently confers a complainant's rights in a mark for the purposes of Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office ("USPTO").").

 

The Panel finds that each of the Domain Names is confusingly similar to the WYNN mark. As each of the Domain Names wholly incorporates the WYNN mark while adding meaningless numbers and the ".com" gTLD, the WYNN mark is clearly recognizable within the Domain Name.  As a result, such changes are insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i) analysis.  See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable 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."); see also Pandora Media, Inc. v. MASATAMI KITA, FA 1622614 (Forum July 20, 2015) (holding the <pandora1.com> domain name confusingly similar to the PANDORA trademark because the only difference between the two was the addition of the numeral "1"); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (finding top-level domains are irrelevant for purposes of Policy ¶ 4(a)(i) analysis).

 

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names."). The Panel holds that Complainant has made out a prima facie case.

 

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the WYNN mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where "Privacy Service" was listed as the registrant of the disputed domain name).  The WHOIS lists "TRI HUNG LUU" as the registrant of record. Coupled with Complainant's unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).

 

The Domain Names either resolve to websites that offer online gaming services under the WYNN mark in direct competition with Complainant's gaming services or websites which appear to be used to obtain click-through revenue by containing advertising links to third-party websites offering both services in direct competition with the Complainant and unrelated services, none of which are related to any descriptive meaning of the domain name.  

 

The use of a confusingly similar domain name to resolve to a webpage that offers goods or services that compete with a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use; indeed it provides a false impression that the Respondent is affiliated with or authorized by Complainant.  See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain's resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use).  See also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that "use of a domain to sell products and/or services that compete directly with a complainant's business does not constitute 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).").  In addition, the use of a confusingly similar domain name to host pay-per-click links unrelated to the descriptive meaning of the domain name is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii).  See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA 1613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant's business); see also Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA 1620342 (Forum July 1, 2015) ("Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.").  

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

The Panel finds on the balance of probabilities that, at the time of registration of the Domain Names, January 20, 2025, Respondent had actual knowledge of Complainant's WYNN mark since the Complainant is a well-known entity in the field of gaming services and the Domain Names resolve to websites that either offer services in direct competition with Complainant or advertising links to entities offering competing services. Furthermore, there is no obvious explanation, nor has one been provided, for an entity to register 14 domain names that wholly incorporate the WYNN mark and use them to redirect visitors to websites offering competing services other than to take advantage of Complainant's reputation in the WYNN Mark.  In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).

 

The Panel finds that Respondent registered and uses the Domain Names in bad faith to create confusion with Complainant's WYNN mark for commercial gain by using the confusingly similar Domain Names to resolve to either a) websites offering gaming services that may mislead consumers into thinking that Respondent, or any service offered by the Respondent, is in some way connected to the Complainant or b) websites containing advertisements and links to third party websites for commercial gain.  Using a confusingly similar domain name for either purpose can evince bad faith under Policy ¶ 4(b)(iv).  See 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).").  See also Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA 1613867 (Forum June 2, 2015) (finding that the respondent registered and used the domain name in bad faith under Policy ¶ 4(b)(iv) where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant's business).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).

 

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 <wynn155.com>, <wynn166.com>, <wynn199.com>, <wynn233.com>, <wynn255.com>, <wynn277.com>, <wynn288.com>, <wynn299.com>, <wynn311.com>, <wynn322.com>, <wynn355.com>, <wynn366.com>, <wynn377.com> and <wynn399.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: March 19, 2025