Wynnjapan.com + 6 more domains

The timeline behind wynnjapan.com

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

How each disputed name was decided in this proceeding.

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

NATIONAL ARBITRATION FORUM DECISION Wynn Resorts Holdings, LLC v. Michael Ross Claim Number: FA1010001349926 PARTIES Complainant is Wynn Resorts Holdings, LLC ("Complainant"), represented by John C. Baum of Townsend and Townsend and Crew LLP, California, USA. Respondent is Michael Ross ("Respondent"), Ohio, USA. REGISTRAR AND DISPUTED DOMAIN NAMES The domain names at issue are <wynnjapan.com>, <wynntokyo.com>, <wynnencorejapan.com>, <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com>, registered with Dotster. 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. Terry F. Peppard as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on October 1, 2010; the National Arbitration Forum received payment on October 1, 2010. On October 4, 2010, Dotster confirmed by e-mail to the National Arbitration Forum that the <wynnjapan.com>, <wynntokyo.com>, <wynnencorejapan.com>, <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com> domain names are registered with Dotster and that Respondent is the current registrant of the names. Dotster has verified that Respondent is bound by the Dotster 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 October 4, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 25, 2010 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@wynnjapan.com, postmaster@wynntokyo.com, postmaster@wynnencorejapan.com, postmaster@wynnkobe.com, postmaster@wynnnagoya.com, postmaster@wynntaiwan.com, and postmaster@wynnyokohama.com. Also on October 4, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On November 3, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding. 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" 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, 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 names be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: Complainant holds trademark registrations for its WYNN mark with the United States Patent and Trade Office (“USPTO”) (including Reg. No. 3,038,216, issued Jan. 3, 2006) and for its ENCORE mark (including Reg. No. 3,610,506, issued April 21, 2009). Complainant uses the marks in connection with the marketing of services offered by its hotels, casinos, and resorts in Las Vegas and Macau. Complainant advertises and promotes its business through its websites resolving from various domain names including <wynncasinos.com>, <wynnlasvegas.com>, <wynnmacau.com>, and <wynnencoremacau.com>. Respondent registered the domain names <wynnjapan.com>, <wynntokyo.com> and <wynnencorejapan.com> on May 11, 2010 and the domain names <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com> on September 28, 2010 and September 29, 2010. The disputed domain names resolve to websites that contain links to purported informational websites for Complainant’s business and also for the business competitors of Complainant. Respondent’s <wynnjapan.com>, <wynntokyo.com>, <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com> domain names are confusingly similar to Complainant’s WYNN mark. Respondent’s <wynnencorejapan.com> domain name is confusingly similar to Complainant’s WYNN and ENCORE marks. Respondent is not commonly known by the disputed domain names, and Complainant has not granted to Respondent authorization to use the WYNN or ENCORE marks. Respondent does not have any rights to or legitimate interests in any of the <wynnjapan.com>, <wynntokyo.com>, <wynnencorejapan.com>, <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com> domain names. Respondent registered and uses the <wynnjapan.com>, <wynntokyo.com>, <wynnencorejapan.com>, <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com> domain names in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS (1) the domain names registered by Respondent are confusingly similar to a trademark or trademarks in which Complainant has rights; and (2) Respondent has no rights to or legitimate interests in respect of any of the contested domain names; and (3) Each of the same domain names was registered and is being used by Respondent 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 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 a 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: i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and ii. Respondent has no rights or legitimate interests in respect of the domain name; and iii. the domain name has been registered and is being used in bad faith. Identical and/or Confusingly Similar Complainant has rights in the WYNN mark and the ENCORE mark due to its registrations of the marks with the USPTO. See UnitedHealth Group Inc. v. Hassan, FA 947081 (Nat. Arb. Forum May 17, 2007) (finding “no difficulty” in holding that a complainant had established rights in its marks for the purposes of Policy ¶ 4(a)(i) through its trademark registrations with the USPTO); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether a complainant has registered its trademark in the country in which a respondent resides, only that it can establish rights in its mark in some jurisdiction). Respondent’s contested <wynnjapan.com>, <wynntokyo.com>, <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com> domain names are confusingly similar to Complainant’s WYNN mark under Policy ¶ 4(a)(i). Each of these domain names contains Complainant’s mark in its entirety, each adds a geographic term (“japan”, “tokyo,” etc.), and each adds the generic top-level domain (“gTLD”) “.com.” These alterations of Complainant’s mark do not avoid a finding of confusing similarity as between the mark and the domain names under the standards of the Policy. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the addition of geograhic terms, such as “cancun” to the end of the CHEAPTICKETS mark in the <cheapticketscancun.com>, <cheapticketscancun.biz>, <cheapticketscancun.net>, and <cheapticketscancun.org> domain names, does not avoid a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Skype Ltd. v. Sacramento, FA 747948 (Nat. Arb. Forum Aug. 30, 2006): The addition of the geographic term [“Brasil”] does not avoid confusing similarity pursuant to Policy ¶ 4(a)(i). See also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007): The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark. We conclude therefore that Respondent’s <wynnjapan.com>, <wynntokyo.com>, <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com> domain names are not distinguishable from Complainant’s WYNN mark and, as such, are confusingly similar to the mark under Policy ¶ 4(a)(i). Similarly, Respondent’s <wynnencorejapan.com> domain name is confusingly similar to Complainant’s WYNN and ENCORE marks. The domain name combines Complainant’s marks, and merely adds a geographic term (“japan”) and the gTLD “.com.” See Trip Network Inc. v. Alviera supra; see also Skype Ltd. v. Sacramento supra; see also Nintendo of Am. Inc. v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (finding confusing similarity where a respondent combined a complainant’s POKEMON and PIKACHU marks to form the <pokemonpikachu.com> domain name); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs. supra. The Panel therefore finds that Respondent’s <wynnencorejapan.com> domain name is not distinguishable from Complainant’s WYNN and ENCORE marks under the policy and is therefore confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). Rights or Legitimate Interests Complainant alleges that Respondent does not have any rights to or legitimate interests in the domain names <wynnjapan.com>, <wynntokyo.com>, <wynnencorejapan.com>, <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com>. Once Complainant makes out a prima facie case in support of this allegation, the burden shifts to Respondent to prove otherwise. See F. Hoffmann-La Roche AG v. Di Salvatore, D2006-1417 (WIPO Feb. 1, 2007): Proper analysis of paragraph 4(a)(ii) of the Policy shows that the burden of proof shifts from the Complainant to the Respondent once the Complainant has made out a prima facie case that the Respondent has no rights or interests in the domain names. Respondent has failed to respond to the Complaint filed in this proceeding, thereby failing to meet its burden. We are therefore free to conclude that Respondent has no rights to or legitimate interests in any of the contested domain names. See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004), finding that because a respondent failed to submit a Response: Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence. We will nonetheless examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain names which are cognizable under the Policy. We begin by observing that Complainant asserts, and Respondent does not deny, that Respondent is not commonly known by the disputed domain names, and that Complainant has not granted to Respondent any authorization to use the WYNN or ENCORE marks. Moreover, the pertinent WHOIS information lists the registrant of the disputed domain names only as “Michael Ross,” which does not resemble the disputed domain names. On this record, we must conclude that Respondent is not commonly known by the disputed domain names so as to have demonstrated that it has rights to or legitimate interests in the domains under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names where the relevant WHOIS information, as well as all other information in the record, gave no indication that that respondent was commonly known by the disputed domain names, and where a complainant had not authorized that respondent to register a domain name containing its registered mark); see also Foot Locker Retail, Inc. v. Gibson, FA 139693 (Nat. Arb. Forum Feb. 4, 2003): “Due to the fame of Complainant’s FOOT LOCKER family of marks . . . and the fact that Respondent’s WHOIS information reveals its name to be ‘Bruce Gibson,’ the Panel infers that Respondent was not ‘commonly known by’ any of the disputed domain names prior to their registration, and concludes that Policy ¶ 4(c)(ii) does not apply to Respondent.”). We also note that there is no dispute as to Complainant’s assertion that each of Respondent’s domain names resolves to a website that displays links to third-party websites, which in turn include links to the websites of enterprises in competition with Complainant’s hotel and resort business. In the circumstances here presented, we presume that Respondent receives click-through fees when Internet users click on the third-party links on the website resolving from the domain names <wynnjapan.com>, <wynntokyo.com>, <wynnencorejapan.com>, <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com>. This use of the contested domain names is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domains pursuant to Policy ¶ 4(c)(iii). See Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying links to third-party websites was not a use in connection with 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), where a respondent presumably received “click-through” fees for each consumer it redirected to other websites); see also Skyhawke Techs., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007): Respondent is using the … domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name 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). The Panel thus finds that the elements of Policy ¶ 4(a)(ii) have been satisfied. Registration and Use in Bad Faith The evidence of record demonstrates a pattern on the part of Respondent in registering domain names by virtue of the registration and use of seven domain names that are confusingly similar to Complainant’s marks. See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that, in appropriate circumstances, even one instance of the registration and use of multiple infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also EPA European Pressphoto Agency B.V. v. Wilson, D2004-1012 (WIPO Feb. 9, 2005) (finding that a respondent’s registration of the <epa-photo.com>, <epaphoto.com> and <epaphotos.com> domain names was sufficient to constitute a pattern of abusive registration and use of domain names pursuant to Policy ¶ 4(b)(ii)). Accordingly, we conclude that Respondent’s registration and use of the <wynnjapan.com>, <wynntokyo.com>, <wynnencorejapan.com>, <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com> domain names constitutes evidence of bad faith registration and use of these domains pursuant to Policy ¶ 4(b)(ii). Respondent uses the disputed domain names to resolve to a website that displays hyperlinks to the websites of Complainant’s commercial competitors. This behavior is disruptive of Complainant’s business, and therefore constitutes evidence of bad faith registration and use of the domains within the meaning of Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a contested domain name to attract Internet users to a directory website containing links to the websites of a complainant’s commercial competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where a respondent’s website featured links to the websites of a complainant’s business competitors, that respondent’s use of the <redeemaamiles.com> domain name constituted bad faith disruption under Policy ¶ 4(b)(iii)). Complainant claims that Respondent receives click-through fees each time an Internet user clicks on one of the aforementioned hyperlinks. Respondent’s use of the contested domain names in these circumstances likely creates confusion among Internet users as to the possibility of Complainant’s affiliation with the domain names. Respondent’s attempt to profit from this confusion constitutes bad faith registration and use of the domains pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that a respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to a complainant’s mark to offer links to third-party websites that offered services similar to those offered by that complainant); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006): Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). For these reasons, the Panel finds that the elements of Policy ¶ 4(a)(iii) have been satisfied. DECISION Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED. Accordingly, it is Ordered that the <wynnjapan.com>, <wynntokyo.com>, <wynnencorejapan.com>, <wynnkobe.com>, <wynnnagoya.com>, <wynntaiwan.com>, and <wynnyokohama.com> domain names be TRANSFERRED forthwith from Respondent to Complainant. Terry F. Peppard, Panelist Dated: November 22, 2010 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

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