The Complainant is Wynn Resorts Holdings, LLC, United States of America (“United States”), represented by Mayer Brown LLP, China.
The Respondent is Way Lee, Philippines. 2. The Domain Names and Registrar
The disputed domain names , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , (the “Domain Names”), are registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 1, 2019. On August 1, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with a subset of the Domain Names. On August 2, 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 Complainant filed an amended Complaint on September 2, 2019. On September 11, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the additional subset of Domain Names added in the amended Complaint. On September 11, 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 of the additional subset of Domain Names.
The Center verified that the Complaint together with the amended Complaint (hereafter 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 September 13, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 3, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 4, 2019.
The Center appointed Nicholas Smith as the sole panelist in this matter on October 14, 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 a United States company involved in the luxury hotel and casino business. In particular the Complainant has developed and operated hotels and casinos including Wynn Las Vegas (opened April 2005), Encore at Wynn Las Vegas (opened December 2008), Wynn Macau (opened September 2006) and Wynn Palace (located in Macau and opened August 2016). Each of the Complainant’s properties includes a large number of guest rooms and extensive casino facilities and other amenities.
The Complainant holds trade marks for the word mark WYNN (the “WYNN Mark”) throughout the world, including the Philippines, the location of the Respondent, where the WYNN Mark was first applied for as a trade mark on May 21, 2012, and registered on January 3, 2013 (trade mark No. 501270).
The Domain Names were registered on April 30, 2019. Each of the Domain Names is presently inactive or redirects to parking pages operated by the Registrar many of which include pay-per-click links to casinos and other gambling products. However prior to the commencement of the proceeding a subset of the Domain Names (, , , , , , , , and ) redirected to a pornographic website and a further subset of the Domain Names (, , , , , , , , , , , , , , , , , , , , , , , , ) redirected to websites (the “Respondent’s Websites”) which purported to offer gambling services under the Complainant’s Chinese-language trade mark. 5. Parties’ Contentions A. Complainant
The Complainant makes the following contentions:
(i) that the Domain Names are identical or confusingly similar to the Complainant’s WYNN Mark;
(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Names; and
(iii) that the Domain Names have been registered and are being used in bad faith.
The Complainant is the owner of the WYNN Mark having registered the WYNN Mark as a trade mark in various jurisdictions around the world (including in China and elsewhere in Asia).
Each of the Domain Names incorporates the whole of the Complainant’s WYNN Mark, a descriptive term, and a number. These additional terms are not sufficient to distinguish the Domain Names from the WYNN Mark.
There are no rights or legitimate interests held by the Respondent in respect of the Domain Names. The Respondent is not commonly known as any of the Domain Names, nor does the Respondent have any authorization or license from the Complainant to use the WYNN Mark. The Domain Names are either unused, inactive, or used for pornographic or gambling websites that capitalise on the goodwill and reputation of the WYNN Mark by diverting visitors to these websites.
The Respondent has registered and used the Domain Names in bad faith. The inherent nature of the Domain Names and the manner of their commercial use shows that the Respondent intended to take advantage of the reputation associated with the WYNN Mark. The Respondent registered the 240 Domain Names on a single day containing the Complainant’s WYNN Mark and used a significant proportion of them for websites (Respondent’s Websites) where the Respondent passes itself off as the Complainant and offers competing services. The remainder of the Domain Names are being passively held, which in the present circumstance amounts to use of the Domain Names in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
To prove this element the Complainant must have trade mark or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade mark or service mark.
The Complainant is the owner of the WYNN Mark, having registrations for the WYNN Mark as a trade mark throughout the world.
Other UDRP panels “have repeatedly held that the addition of a generic word to a recognized mark creates a confusing similarity between the domain name and the mark of the [c]omplainant”. The Bank of Nova Scotia v. Whois Protection,WIPO Case No. D2007-0884. See also Valero Energy Corporation, Valero Marketing and Supply Company v. Domain Name Proxy, LLC, Navigation Catalyst Systems, Inc.,WIPO Case No. D2011-1227.
The Domain Names consist of the WYNN Mark, the dictionary terms “cash” or “play”, and various numbers. None of the additional words or numbers prevent a finding of confusing similarity between the Domain Names and the WYNN Mark. The Panel finds that the each of the Domain Names is confusingly similar to the Complainant’s WYNN Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
To succeed on this element, a complainant may make out a prima facie case that the respondent lacks rights or interests in the disputed domain name. If such a prima facie case is made out, the respondent then has the burden of demonstrating rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name:
“Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trade mark or service mark rights; or
(iii) you are making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue”.
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Names or to seek the registration of any domain name incorporating the WYNN Mark or a mark similar to the WYNN Mark. There is no evidence that the Respondent is commonly known by the Domain Names or any similar name.
There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Names in connection with a bona fide offering of goods or services or for a legitimate noncommercial use. The Respondent has used domain names containing the WYNN Mark to redirect to a website that offers competing gambling services under the Complainant’s Chinese-language WYNN Mark (in a manner that may constitute infringement of marks registered to the Complainant). Neither this use, or any other identified uses of the Domain Names (including for sites with pay-per-click links or pornographic sites) amounts to a bona fide offering of goods or services.
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Names. The Respondent has chosen not to respond to the Complaint and thus has failed to provide any evidence of rights and legitimate interests in the Domain Names. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the Domain Names primarily for the purpose of selling, renting, or otherwise transferring the Domain Names registrations to the Complainant who is the owners of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Names; or
(ii) the Respondent has registered the Domain Names in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain names, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the Domain Names primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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. (Policy, paragraph 4(b)).
The Panel finds that it is likely that the Respondent was aware of the Complainant and its reputation in the WYNN Mark at the time each of the Domain Names was registered. It is improbable that a person would register 240 domain names that all incorporate the WYNN Mark (and operate websites that displays the Complainant’s Chinese-language marks) without having awareness of the Complainant’s rights in the WYNN Mark. In the circumstances, the registration of the Domain Names in awareness of the WYNN Mark and in the absence of rights or legitimate interests amounts to registration in bad faith.
The Respondent may also have registered the Domain Names in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name. The registration of 240 Domain Names incorporating the WYNN Mark is sufficient to show a pattern of conduct in registering domain names in order to prevent the Complainant from reflecting its mark in a corresponding domain name.
The Respondent has used the a significant proportion of the Domain Names to intentionally attempt to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the Complainant’s WYNN Mark as to the source, sponsorship, affiliation or endorsement of its website. The Respondent’s Websites offer competing services under the Complainant’s Chinese trade marks and the Respondent may also receive revenue from Internet users who access the various parking pages and click on the (many of which are casino-related) pay-per-click links. Given this usage, it is undoubtedly the case that the Respondent intended to use the presently inactive Domain Names for similar purposes. The fact that some of the Domain Names do not resolve to an active website does not prevent a finding of bad faith.
Accordingly, the Panel finds that the Respondent has registered and is using the each of the Domain Names in bad faith under paragraph 4(a)(iii) 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 Domain Names , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , be transferred to the Complainant.
Nicholas Smith
Sole Panelist
Date: October 23, 2019
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