The Complainant is Wynn Resorts Holdings, LLC, United States of America (“United States”), represented by Mayer Brown LLP, China.
The Respondent is Chang Long Huang, China. 2. The Domain Name and Registrar
The disputed domain name is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 9, 2019. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name that differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 10, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 12, 2019.
The Center verified that the Complaint together with the amended 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 July 24, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 13, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 14, 2019.
The Center appointed Matthew Kennedy as the sole panelist in this matter on August 21, 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 is part of the Wynn corporate group, which designs, develops and operates resorts that offer gaming and other services. One of the Complainant group’s resorts is called “Wynn Macau”, which opened in 2006. Wynn is also known as “永利” in Chinese and the Wynn corporate group often uses the Wynn name in a fancy handwritten script (the “Wynn logo”). The Complainant has registered multiple trademarks in multiple jurisdictions including Chinese trademark registration number 5619197 for WYNN, registered on October 21, 2009, specifying services in class 41, including online gaming services. That trademark registration remains current. The Complainant has also registered multiple domain names that begin with the name “wynn”, including (registered May 2, 2000) and (registered July 11, 2002). It uses these domain names in connection with official websites to provide information about its resorts.
The Respondent is an individual resident in Taiwan Province, China.
The disputed domain name was registered on May 3, 2019. It resolves to a gambling website in simplified Chinese that falsely claims to be the official site of the Complainant’s Wynn Macau resort. The website prominently displays Wynn’s Chinese name, 永利, and the Wynn logo, and displays images of the Complainant’s Wynn Macau resort.
The numeral 138 is often considered auspicious in Chinese because it is phonetically similar to “一生发”, meaning to be rich all one’s life. 5. Parties’ Contentions A. Complainant
The disputed domain name is confusingly similar to the Complainant’s WYNN trademark. “Wyn” and WYNN are visually and phonetically similar.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has not licensed, consented to or otherwise authorized the Respondent’s use of its WYNN trademark in the disputed domain name or at all. The Respondent’s name is “Chang Long Huang” and not the disputed domain name. The Respondent is using the disputed domain name to pass off his business as the Complainant’s and to create confusion.
The disputed domain name was registered and is being used in bad faith. The unauthorized use of the WYNN trademark and pictures of the Complainant’s Wynn Macau resort show that the Respondent is aware of the Complainant and its trademark. The Respondent’s website is intended to confuse the public into believing that the Respondent has some association with the Complainant’s group. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements:
- the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Based on the evidence submitted, the Panel finds that the Complainant has rights in the WYNN trademark.
The disputed domain name incorporates the Complainant’s WYNN trademark but for the omission of one letter “n”, which is a basic typographical error that Internet users could make when searching for the Complainant’s sites. The disputed domain name’s initial and dominant element is “wyn”, which is phonetically identical to the Complainant’s WYNN trademark.
The disputed domain name contains two additional elements: the numeral “138” and the generic Top-Level Domain (“gTLD”) suffix “.com”. As a mere numeral, “138” does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s mark. A gTLD suffix is generally incapable of dispelling confusing similarity between a domain name and a trademark for the purposes of the Policy.
Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to [the respondent] of the dispute, [the respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or
(ii) [the respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the respondent has] acquired no trademark or service mark rights; or
(iii) [the respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
As regards the first circumstance, the disputed domain name resolves to a website that falsely claims to be the official website of the Complainant’s Wynn Macau resort. The disputed domain name is confusingly similar to the Complainant’s WYNN trademark but the Complainant submits that it has not licensed, consented to or otherwise authorized the Respondent’s use of its WYNN trademark in the disputed domain name. This shows that the Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services within the terms of paragraph 4(c)(i) of the Policy.
As regards the second circumstance, the Registrar’s WhoIs database indicates that the Respondent’s name is “Chang Long Huang” not “wyn138” nor even “wyn”. There is no evidence indicating that the Respondent has been commonly known by the disputed domain name within the terms of paragraph 4(c)(ii) of the Policy.
As regards the third circumstance, the disputed domain name resolves to a gaming website. That is not a legitimate noncommercial or fair use within the terms of paragraph 4(c)(iii) of the Policy.
In view of the above circumstances, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent did not rebut that prima facie case because he did not respond to the Complaint.
Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows:
(iv) by using the [disputed] domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.”
As regards registration, the disputed domain name was registered after the Complainant’s trademark registration. It resolves to a website that displays the Complainant’s Chinese name “永利”, its Wynn logo, and images of the Complainant’s Wynn Macau resort. This gives the Panel reason to find that the Respondent was aware of the Complainant and its mark at the time of registration of the disputed domain name and that he registered the disputed domain name in bad faith.
As regards use, the disputed domain name resolves to a gaming website that falsely claims to be the official site of the Complainant’s Wynn Macau resort. Therefore, the Panel finds that the Respondent uses the disputed domain name intentionally to attract Internet users to his site by creating a likelihood of confusion with the Complainant’s WYNN mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s site. This use is intentional and either for the commercial benefit of the Respondent or for the operators of the gaming website to which his site links, or both. In any of these scenarios, the Respondent’s use is for commercial gain within the terms of paragraph 4(b)(iv) of the Policy.
Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) of the Policy. 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.
Matthew Kennedy
Sole Panelist
Date: August 26, 2019
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