Westmore · UDRP Decision1wynn.com
The Panel ordered transfer of <1wynn.com>. It found the domain confusingly similar to the Complainant’s registered WYNN mark because the prefixed number “1” did not eliminate confusing similarity. The Complainant made an unrebutted prima facie showing that the Respondent lacked rights or legitimate interests. The Panel also found bad-faith registration and use based on the likelihood that the Respondent knew of and targeted the longstanding WYNN mark and used the domain for pay-per-click advertisements, including links concerning the Complainant’s services.
The timeline behind 1wynn.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind 1wynn.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates that adding a simple numeral before a trademark generally does not prevent confusing similarity and that pay-per-click use targeting the trademark owner’s field can support both the absence of legitimate interests and bad faith. It also shows that a respondent’s personal name corresponding to a mark may raise a relevant issue, but the mere appearance of that name in registrant data did not establish rights where the respondent provided no supporting evidence.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Wynn Resorts Holdings, LLC v. Wynn Esterline Case No. D2019-2725 1. The Parties The Complainant is Wynn Resorts Holdings, LLC, United States of America (“United States”), represented by Mayer Brown LLP, China. The Respondent is Wynn Esterline, United States. 2. The Domain Name and Registrar The disputed domain name <1wynn.com> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 7, 2019. On November 7, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 8, 2019, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 15, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 5, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 6, 2019. The Center appointed Evan D. Brown as the sole panelist in this matter on December 12, 2019. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background The Complainant designs, develops and operates resorts. It owns a number of trademark registrations for the mark WYNN, including United States Reg. No. 2977861 registered on July 26, 2005. The disputed domain name was registered on April 6, 2013. The Respondent has used the disputed domain name to publish a web page featuring pay-per-click advertisements, including links concerning the Complainant’s own services. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademarks; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has rights in the mark WYNN. A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. See, Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen , WIPO Case No. D2014-0657 . The Complainant has demonstrated its rights because it has shown that it is the owner of the registered mark WYNN as noted above. The Panel also finds that the disputed domain name is confusingly similar to the WYNN mark. The number “1” at the front-end of the disputed domain name does not eliminate the confusing similarity. B. Rights or Legitimate Interests The Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes that showing, the burden of demonstrating rights or legitimate interests shifts to the Respondent. The Complainant has established, prima facie , that the Respondent lacks rights or legitimate interests in the disputed domain name. On this point, the Complainant asserts, among other things, that: (1) The Respondent is not a licensee of the Complainant, nor has it been otherwise allowed by the Complainant to make any use of the Complainant’s trademarks, nor is the Respondent an authorized representative or partner of the Complainant. (2) The Respondent has not used, nor has made demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. Instead, the Respondent saw the commercial benefit of using the Complainant’s WYNN mark to drive traffic to the Respondent’s website, for commercial benefit. (3) Though the Respondent’s first name is listed as “Wynn,” it would not be sufficient for the Respondent to merely assert that he or she has been commonly known by the disputed domain name. (4) The Respondent cannot assert that it has made or is currently making legitimate noncommercial or fair use of the disputed domain name. The Respondent failed to introduce evidence to rebut this prima facie showing. The Panel finds that the Complainant has established this second element under the Policy. C. Registered and Used in Bad Faith The Policy provides that bad faith registration and use of a disputed domain name may be shown when a respondent uses a disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to a website by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of a product or service on that website. The Panel finds the Respondent registered the disputed domain names in bad faith. Given the longstanding use and registration of the WYNN mark, it is more likely than not that the Respondent knew of and targeted the Complainant and its marks at the time of registration of the disputed domain name. Bad faith use is indicated by the Respondent using the disputed domain name to set up a web page with pay-per-click advertisements. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <1wynn.com> be transferred to the Complainant. Evan D. Brown Sole Panelist Date: December 26, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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