DECISION

 

Wynn Resorts Holdings, LLC v. chenjian feng

Claim Number: FA2502002141474

PARTIES

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

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <wynn002.com>, <wynn003.com>, <wynn004.com>, <wynn005.com> and <wynn006.com>, registered with Metaregistrar BV.

 

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.

 

Ho-Hyun Nahm, Esq. as Panelist.

 

PROCEDURAL HISTORY

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

 

On February 25, 2025, Metaregistrar BV confirmed by e-mail to Forum that the <wynn002.com>, <wynn003.com>, <wynn004.com>, <wynn005.com> and <wynn006.com> domain names are registered with Metaregistrar BV and that Respondent is the current registrant of the names. Metaregistrar BV has verified that Respondent is bound by the Metaregistrar BV 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 26, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 18, 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@wynn002.com, postmaster@wynn003.com, postmaster@wynn004.com, postmaster@wynn005.com, postmaster@wynn006.com. Also on February 26, 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 19, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. 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

i) Complainant, Wynn Resorts Holdings, LLC, is a wholly owned subsidiary of Wynn Resorts, Limited, which is the owner and operator of the luxury casino resorts Wynn Las Vegas and Encore in Las Vegas, Nevada. Complainant holds more Forbes Travel Guide Five Star awards than any other independent hotel company in the world, and its resorts are regarded as among the finest in the world. Complainant owns rights in the WYNN mark, inter alia, with the USPTO (e.g., Reg. No. 2,998,762, registered September 20, 2005). The disputed domain names are confusingly similar to Complainant's WYNN mark as they incorporate Complainant's entire WYNN trademark with the addition of generic numbers and the ".com." gTLD. 

 

ii) Respondent has no rights or legitimate interests in the disputed domain names. Respondent is neither commonly known by the disputed domain names nor authorized by Complainant to use its WYNN mark. Respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate non-commercial fair use. Instead, Respondent has linked the disputed domain names to an identical active website, which is a Chinese website providing online gaming services.

 

iii) Respondent has registered and is using the disputed domain names in bad faith. The disputed domain names resolve to a website that offers gaming services, which wrongfully diverts the public from visiting Complainant's websites. The disputed domain names misappropriate traffic from Complainant's website by creating a likelihood of confusion with Complainant's WYNN mark, resulting in commercial gain for Respondent and commercial harm to Complainant. Given the high level of consumer recognition the WYNN mark has achieved in the United States and internationally, Respondent was aware of Complainant's rights in the WYNN mark and used the WYNN mark in bad faith.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

1. The disputed domain names were registered on January 24, 2025.

 

2. Complainant has established rights in the WYNN mark, inter alia, with the USPTO (e.g. Reg. No. 2,998,762 registered September 20, 2005).

 

3. The disputed domain names resolve to a website that offers online 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 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 asserts that it has established rights in the WYNN mark via its registration with the USPTO (e.g., Reg. No. 2,998,762, registered September 20, 2005). The registration of a mark with the USPTO sufficiently establishes rights in that mark. Complainant has provided evidence of its registration of the WYNN mark with the USPTO. Therefore, the Panel finds that Complainant has established rights in the mark under Policy ¶ 4(a)(i).

 

Complainant argues that the disputed domain names <wynn002.com>, <wynn003.com>, <wynn004.com>, <wynn005.com>, and <wynn006.com> are confusingly similar to Complainant's WYNN mark as they incorporate Complainant's entire WYNN trademark with the addition of generic numerals and the ".com" gTLD. The Panel finds that the addition of the nondistinctive numerals and the gTLD ".com" fails to obviate the confusing similarity. The Panel therefore finds that the disputed domain names are confusingly similar to Complainant's WYNN mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Section 2.1, WIPO Jurisprudential Overview 3.0 ("Where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.").

 

Complainant argues that Respondent has no rights or legitimate interest in the disputed domain name as Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use Complainant's mark, and Respondent is not affiliated with Complainant. Relevant information, such as WHOIS information, can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). The Panel notes that the WHOIS data lists "chenjian feng" as the registrant, and there is no evidence in the record to suggest Respondent was authorized to use the mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Complainant also argues that Respondent does not use the disputed domain names for any bona fide offering of goods or services or for legitimate noncommercial or fair use. Instead, the disputed domain names resolve to a website that offers online gaming services. Using a confusingly similar domain name to display competing content, e.g., gaming services, can evince a lack of a bona fide offering of goods or services or of legitimate noncommercial or fair use.

 

The use of a disputed domain name to offer goods and/or services that compete with a complainant's business 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). See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) ("Respondent's use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use" where "Respondent is apparently using the disputed domain name to offer for sale competing services."); 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).").

 

Complainant provides a screenshot of the website to which the disputed domain names resolve, showing that it offers an online gaming service closely related to the services offered by Complainant. Therefore, the Panel finds that Respondent does not use the disputed domain names for any bona fide offering of goods or services under Policy ¶ 4(c)(i) nor for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).

 

The Panel finds that Complainant has made out a prima facie case based on the considerations above. These factors collectively establish the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.

 

Registration and Use in Bad Faith

Complainant contends that Respondent has registered and is using the disputed domain names in bad faith because they resolve to a website offering gaming services.

 

As previously noted, Respondent uses the disputed domain names to direct Internet users to a website offering gaming services that compete with Complainant's gaming and gambling business. The Panel finds that Respondent uses the disputed domain names to attempt to redirect Internet users by trading off the goodwill associated with Complainant's WYNN mark for commercial gain, and thus Respondent has registered and is using the disputed domain names in bad faith. See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) ("Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant."); see also Bank of America, National Association v. Marcos Alexis Nelson, FA1505001621654 (Forum July 2, 2015) (finding that the respondent had registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iv) where it used the disputed domain name to promote its business in real estate and financial services, which competed with the services the complainant offered).

 

The Panel notes that Complainant provides a screenshot of the website to which the disputed domain names resolve, showing that it offers a gaming service that competes with Complainant and is closely related to the services offered by Complainant. As such, the Panel finds that Respondent has registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv).

 

Next, Complainant argues that Respondent registered the disputed domain names with constructive or actual notice of Complainant's rights in the WYNN mark. While constructive notice is not sufficient to support a bad faith finding, actual knowledge may constitute a bad faith registration. Complainant contends that Respondent had knowledge of Complainant's rights in the mark given the global fame of Complainant and its mark, and the fact that the disputed domain names incorporate Complainant's WYNN mark.

 

The Panel infers, due to the notoriety of Complainant's mark and the manner in which the disputed domain names are used, that Respondent had knowledge of Complainant's rights in the WYNN mark at the time of registering the disputed domain names, and finds that Respondent has registered the disputed domain names in bad faith under 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 <wynn002.com>, <wynn003.com>, <wynn004.com>, <wynn005.com> and <wynn006.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Ho-Hyun Nahm, Esq., Panelist

Dated: March 19, 2025