Hardrockpoker.net

The timeline behind hardrockpoker.net

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Hard Rock Cafe International (USA), Inc. v. Ronald Robinson Claim Number: FA0910001290206 PARTIES Complainant is Hard Rock Cafe International (USA), Inc. (“Complainant”), represented by Zachary D. Messa, of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Florida, USA. Respondent is Ronald Robinson (“Respondent”), Texas, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <hardrockpoker.net>, registered with Godaddy.com, 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. Judge Ralph Yachnin as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on October 19, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 20, 2009. On October 20, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <hardrockpoker.net> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On October 21, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 10, 2009 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@hardrockpoker.net by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On November 12, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions: 1. Respondent’s <hardrockpoker.net> domain name is confusingly similar to Complainant’s HARD ROCK mark. 2. Respondent does not have any rights or legitimate interests in the <hardrockpoker.net> domain name. 3. Respondent registered and used the <hardrockpoker.net> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Hard Rock Cafe International (USA), Inc., has been in the leisure and entertainment industry since at least as early as 1978. In 1995, Complainant opened a casino in Las Vegas, Nevada. The United States Patent and Trademark Office (“USPTO”) has issued Complainant several registrations of its HARD ROCK mark (e.g., Reg. No. 2,478,329 issued Aug. 14, 2001). Respondent, Ronald Robinson, registered the <hardrockpoker.net> domain name on May 26, 2009. The disputed domain name resolves to a website displaying banner advertisements and links for gambling websites, some of which compete with gambling services offered at Complainant’s casino. DISCUSSION 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." 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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”). 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. Identical and/or Confusingly Similar Respondent, Ronald Robinson, registered the <hardrockpoker.net> domain name on May 26, 2009. Complainant contends, and the Panel finds, that Complainant has established rights in the HARD ROCK mark pursuant to Policy ¶ 4(a)(i) by holding multiple registrations of the mark with the USPTO (e.g., Reg. No. 2,478,329 issued Aug. 14, 2001). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”). The <hardrockpoker.net> domain name contains Complainant’s mark, omitting the space between two words of the HARD ROCK mark, adding the generic word “poker,” and the generic top-level domain (“gTLD”) “.net.” The Panel finds that none of the differences between Complainant’s HARD ROCK mark and Respondent’s <hardrockpoker.net> domain name create distinctiveness and, therefore, the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i); see also Am. Online, Inc. v. Karandish, FA 563833 (Nat. Arb. Forum Nov. 2, 2005) (finding that the addition of the descriptive term “talk” to a registered mark does not sufficiently distinguish a domain name under Policy ¶ 4(a)(i)). The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Pursuant to Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no rights or legitimate interests in the <hardrockpoker.net> domain name. If the Panel finds that Complainant’s allegations establish such a prima facie case, the burden shifts to Respondent to show that it does indeed have rights or legitimate interests in the disputed domain name pursuant to the guidelines in Policy ¶ 4(c). The Panel finds that Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Since no response was submitted in this case, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain name. However, the Panel will still examine the record in consideration of the factors listed in Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”). Complainant asserts that Respondent has no license or agreement with Complainant authorizing Respondent to use its HARD ROCK mark, and the WHOIS information identifies the registrant as “Ronald Robinson.” The Panel finds no evidence in the record suggesting that Respondent is commonly known by the disputed domain name. Thus, the Panel finds that Respondent is not commonly known by the <hardrockpoker.net> domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”). Complainant contends that the website resolving from the disputed domain name displays banner advertisements and links to gambling websites. The Panel infers that Respondent receives click-through-fees for these links and advertisements. Additionally, some of these gambling websites directly compete with Complainant’s casino business. The Panel finds this is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (concluding that the use of a confusingly similar domain name to operate a portal with hyperlinks to various third-party websites, some of which may be in direct competition with a complainant, does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)). The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Respondent is using the <hardrockpoker.net> domain name to host links and advertisement for gambling websites. Complainant owns a casino in Las Vegas, Nevada. The Panel infers that Respondent is attempting to disrupt Complainant’s business by directly competing under a confusingly similar domain name. The Panel finds that this use of the disputed domain name is evidence of bad faith under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant). The website resolving from the <hardrockpoker.net> domain name displays banner advertisements and links to gambling websites. The Panel infers that Respondent receives click-through-fees for these links and advertisements. Given the confusingly similar nature of the disputed domain name and that Complainant owns a casino in Las Vegas, Nevada, Internet users are likely to become confused as to Complainant’s affiliation or approval of the resolving website. By receiving click-through-fees, Respondent is seeking profit from this confusion. The Panel finds this use constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s registration of an infringing domain name to redirect Internet users to banner advertisements constituted bad faith use of the domain name); see also Encyclopaedia Britannica Inc. v. Shedon.com, D2000-0753 (WIPO Sept. 6, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by using the domain name <britannnica.com> to hyperlink to a gambling site). The Panel finds that 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 <hardrockpoker.net> domain name be TRANSFERRED from Respondent to Complainant. Hon. Ralph Yachnin, Panelist Justice Supreme Court, NY (Ret.) Dated: November 25, 2009 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.