DECISION

 

Wynn Resorts Holdings, LLC v. Bastian Lobemeier

Claim Number: FA2502002142546

 

PARTIES

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

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wynnbangkok.com> (the "disputed domain name"), registered with Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA.

 

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.

 

Lynda M. Braun as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 27, 2025; Forum received payment on February 27, 2025.

 

On February 28, 2025, Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA confirmed by e-mail to Forum that the <wynnbangkok.com> disputed domain name is registered with Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA and that Respondent is the current registrant of the name. Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA has verified that Respondent is bound by the Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA 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 March 5, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 25, 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@wynnbangkok.com. Also on March 5, 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 26, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Lynda M. Braun 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 disputed domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant, a Nevada limited liability company with its principal place of business in Las Vegas, Nevada, USA, is a wholly owned subsidiary of Wynn Resorts, Limited, the owner and operator of the luxury casino resorts Wynn Las Vegas and Encore in Las Vegas, Nevada, USA, and Wynn Macau in Macau, China. Since at least as early as April 28, 2005, Complainant has continuously used the WYNN trademark in connection with casino, hotel resort, restaurant, bar, spa and entertainment services, among other goods and services.  Complainant owns numerous trademark registrations in the United States Patent and Trademark Office ("USPTO"), including, but not limited to: WYNN, United States Trademark Registration No. 2,998,762, registered on September 20, 2005, in International Class 41 (hereinafter collectively referred to as the "WYNN Mark").

 

Wynn has spent substantial sums of money to advertise, promote and protect the WYNN Mark in print, broadcast and Internet media, including through its websites "www.wynnlasvegas.com" and "www.wynnmacau.com".

 

Complainant contends that the disputed domain name is identical or confusingly similar to Complainant's WYNN Mark since it incorporates the entire mark and simply adds the geographical term "bangkok", followed by the generic Top-Level Domain ("gTLD") to the WYNN Mark. Complainant further contends that Respondent has no rights or legitimate interests in respect of the disputed domain name as it is used passively, and that the disputed domain name was registered and is being used in bad faith, as Respondent, among other things, had actual knowledge of Complainant and the WYNN Mark.

 

The disputed domain name was registered on March 15, 2024 and resolves to an inactive landing page in German and in English, stating that the website for the disputed domain name is currently under construction.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Panel finds that Complainant holds trademark rights in the WYNN Mark. The Panel also finds that Complainant has established that the disputed domain name is identical or confusingly similar to Complainant's WYNN Mark, that Respondent lacks rights or legitimate interests in the disputed domain name, and that Respondent registered and is using the disputed domain name 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 disputed domain name should be cancelled or transferred:

 

(1)       the disputed 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 disputed domain name; and

(3)       the disputed 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

The Panel finds that Complainant has rights in the WYNN Mark based on registration with the USPTO (e.g., Registration No. 2,998,762, registered on September 20, 2005, in International Class 41). Registration of a trademark with the USPTO demonstrates that a party has rights in that trademark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) ("Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.").

 

Further, the Panel finds that the disputed domain name is confusingly similar to Complainant's WYNN Mark since it incorporates the WYNN Mark in its entirety, merely the geographical term "bangkok", followed by the gTLD ".com". trademark. Adding a term to a disputed domain name does not distinguish a disputed domain name from a trademark under Policy paragraph 4(a)(i) because where a trademark is recognizable in a disputed domain name, the addition of other terms does not prevent a finding of confusing similarity. 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.").

 

Moreover, the addition of a gTLD to an otherwise recognizable mark, as here, does not distinguish a disputed domain name from the trademark under Policy paragraph 4(a)(i). The addition of a gTLD to a complainant's mark is irrelevant in determining whether the disputed domain names are confusingly similar. See Tupelo Honey Hospitality Corp. v. King, Reggie, FA 1732247 (Forum July 19, 2017) (the addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name).

 

Accordingly, the Panel finds that Policy paragraph 4(a)(i) has been established by Complainant.

 

Rights or Legitimate Interests

The Panel finds that Respondent holds no rights or legitimate interests in the disputed domain names.

 

Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name. Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving that a respondent lacks rights or legitimate interests in a domain name may result in the difficult task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent.

 

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 disputed domain name under Policy paragraph 4(a)(ii), and then the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain names. 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."). Here, the Panel holds that Complainant has made out a prima facie case.

 

The Panel concurs with Complainant that Respondent has no rights or legitimate interests in the disputed domain name as Respondent has not proven that it is commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the WYNN Mark. The Panel further concludes that Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.

 

Further, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate, noncommercial or fair use as the disputed domain name resolves to an inactive webpage. Use of the disputed domain name in this manner is not use in connection with a bona fide offering of goods or services and further indicates that Respondent has no rights or legitimate interests in the disputed domain name. See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy paragraph 4(c)(i) or Policy paragraph 4(c)(iii) where it failed to make an active use of the domain name).

 

Accordingly, the Panel finds that Policy paragraph 4(a)(ii) has been established by Complainant.

 

Registration and Use in Bad Faith

This Panel finds that, based on the record, the Complainant has demonstrated the existence of Respondent's bad faith registration and use pursuant to paragraph 4(b)(iv) of the Policy as described below.

 

First, the use of disputed domain name to intentionally attempt to attract Internet users to a respondent's website or online location by creating a likelihood of confusion or a false association with a complainant's mark as to the source, sponsorship, affiliation or endorsement of the registrant's website or online location demonstrates registration and use in bad faith. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006).

 

Second, where a disputed domain name is so obviously connected with a well-known name, product or service, their use by someone with no connection to the name, product or service indicates opportunistic bad faith. Therefore, the Panel concludes that Respondent's registration and use constitutes bad faith under Policy paragraph 4(a)(iii).

 

Third, the Panel finds that Respondent registered and is using the disputed domain name in bad faith because Respondent registered the disputed domain name with actual knowledge of Complainant's rights in the WYNN Mark. In this case, it strains credulity to think that Respondent did not have actual knowledge of Complainant's WYNN Mark as the disputed domain name chosen by Respondent uses the WYNN Mark in its entirety and the WYNN Mark is well known.  See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (finding actual knowledge due to the domain name chosen and the use made of it); Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware" of the complainant's mark at the time of registration).

 

Finally, after registering the disputed domain name with knowledge of Complainant's trademark rights, Respondent failed to use the disputed domain name actively.  Thus, failure to make use of the disputed domain name is evidence that Respondent registered the disputed domain name in bad faith.  See Hard Rock Café International (USA), Inc. v. Peter Bouzianis, FA 1507576 (Forum Aug. 5, 2013) ("Respondent's failure to make an active use of the <hardrockhoteldaytonabeach.us> domain name demonstrates bad faith use or registration pursuant to Policy ¶ 4(a)(iii).").

 

Accordingly, the Panel finds that Policy paragraph 4(a)(iii) has been established by Complainant.

 

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 <wynnbangkok.com> disputed domain name be TRANSFERRED from Respondent to Complainant. 

 

 

 

Lynda M. Braun, Panelist

Dated: April 4, 2025