The Complainant is Seminole Tribe of Florida of Hollywood, Florida, United States of America (“United States”), represented by Richter Trademarks, United States.
The Respondent is Domain Administrator, Fundacion Privacy Services LTD of Panama City, Panama. 2. The Domain Name and Registrar
The disputed domain name is registered with Media Elite Holdings Limited dba Register Matrix (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 30, 2018. On January 2, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 3, 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 January 7, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 27, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 28, 2019.
The Center appointed Steven A. Maier as the sole panelist in this matter on January 31, 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 operates casinos and leisure facilities in the United States under the name and trademark HARD ROCK.
The Complainant has rights in multiple registrations for trademarks comprising or including the mark HARD ROCK, including for example United States trademark number 2478328 for HARD ROCK, registered on August 14, 2001, and United States trademark number 3601548 for HARD ROCK HOTEL & CASINO, registered on April 7, 2009.
The Complainant’s establishments include a destination named the “Seminole Hard Rock Hotel & Casino Tampa”, located in Tampa, Florida, United States.
The disputed domain name was registered on October 17, 2007.
It is unclear on the evidence available to the Panel whether the disputed domain name has at any time directed to any active website or how it has otherwise been used. 5. Parties’ Contentions A. Complainant
The Complainant submits that it has operated casinos under the name and mark HARD ROCK since 2004 and that its establishment in Tampa, referred to above, is the largest of those facilities.
The Complainant states that it has invested heavily in the promotion of the HARD ROCK brand both online and offline and that its facilities are recognized by the public as meeting the highest standards. The Complainant exhibits examples of promotional materials and submits that its HARD ROCK trademark has become famous as a result of its distinctiveness.
The Complainant submits that the disputed domain name is identical or confusingly similar to its HARD ROCK trademark.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It contends that the Respondent has no connection with the Complainant and that the Respondent has not commonly been known by the disputed domain name. The Complainant submits that that the Respondent has neither used the disputed domain name in connection with any bona fide offering of goods or services nor made legitimate noncommercial or fair use of the disputed domain name.
The Complainant submits that the disputed domain name was registered and is being used in bad faith. It argues in particular that the Respondent has used the disputed domain name to take unfair advantage of the reputation and goodwill in the Complainant’s HARD ROCK trademark by attracting Internet users in order to “… redirect them to third-party vendors to purchase competing products, and then profit from the redirection in the form of commission and affiliate income”. However, the Complainant does not exhibit any materials in support of this contention.
The Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has established that it holds rights to a United States trademark for the name and mark HARD ROCK. The disputed domain name is identical to the Complainant’s trademark but for the addition of the term “tampa” and the generic Top-Level Domain (“gTLD”) “.com”, which is typically disregarded for the purposes of comparison. The Panel does not consider that the addition of the geographical identifier “tampa” is effective to distinguish the disputed domain name from the Complainant’s HARD ROCK trademark and finds therefore that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. B. Rights or Legitimate Interests
In the view of the Panel, the Complainant’s submissions referred to above give rise to a prima facie case for the Respondent to answer that it has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has failed to participate in these proceedings and has neither provided an explanation for its choice of the disputed domain name nor advanced any submissions concerning any rights or legitimate interests that it may claim to have in the disputed domain name. The Panel having no other evidence of any such rights or legitimate interests on the part of the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The Panel finds on the evidence that the Complainant’s mark HARD ROCK has become distinctive and widely known in the leisure industry and that its casino and hotel under that name located in Tampa, Florida is also widely known. In view of these findings and the lack of any alternative explanation on the part of the Respondent, the Panel infers that the Respondent registered the disputed domain name in the knowledge of the Complainant’s HARD ROCK trademark and its Tampa facility and with the intention of taking unfair advantage of the goodwill attaching to the Complainant’s trademark.
The Complainant asserts (but has failed to prove) that the Respondent has used the disputed domain name for the purpose of diverting Internet users to commercial websites for the purpose of financial gain. However, the Panel finds that the disputed domain name is inherently misleading and amounts in itself to an impersonation of the Complainant. In the absence, once again of any contrary argument from the Respondent, the Panel infers on balance that the Respondent can only have used the disputed domain name with the intention of taking unfair advantage of the Complainant’s goodwill.
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith. 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, , be transferred to the Complainant.
Steven A. Maier
Sole Panelist
Date: February 14, 2019
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