The Complainant is Wynn Resorts Holdings, LLC, United States of America (“USA”), represented by Mayer Brown LLP, China.
The Respondent is Registration Private, Domains By Proxy, LLC, USA / Simon Su, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 11, 2019. On October 11, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 14, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 16, 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 October 21, 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 October 24, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 13, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 14, 2019. The Center appointed Sok Ling MOI as the sole panelist in this matter on November 27, 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, based in Las Vegas, is part of a multinational hotel group which designs, develops and operates integrated resorts which incorporates luxury hotel rooms, high-end retail, dining and entertainment options, meeting space as well as gaming and casino facilities. The Complainant’s principal place of business is in the USA, Macau, China and China. The Complainant entered the China market more than a decade ago, and currently operates two integrated resorts, “Wynn Macau” and “Wynn Palace”, in Macau, China. The Complainant and its group of company have continuously used WYNN as a trade mark to market its hotel and related services around the world. The Complainant owns trade mark registrations for WYNN, WYNN (stylised) and 永利 (the Chinese name for “WYNN”) (collectively “the WYNN trade marks”) in various jurisdictions in connection with its hotels and related services, including the following trade mark registrations: Jurisdiction TradeMark Registration No. Registration Date Class China WYNN 5304537 July 28, 2009 41 China WYNN 12046968 July 7, 2014 41 China WYNN 5304538 October 14, 2009 43 China WYNN(stylised) 5516992 September 28, 2009 41 China WYNN(stylised) 5516991 November 28, 2009 43 China 永利 18375788 March 7, 2017 41 China 永利 3808581 March 21, 2006 43 Taiwan province of China WYNN 1598133 September 1, 2013 16, 25, 28, 35, 39, 41, 43, and 44 Taiwan province of China WYNN(stylised) 1598134 September 1, 2013 16, 25, 28, 35, 39, 41, 43, and 44 Taiwan province of China 永利 1105086 June 1, 2004 41 Taiwan province of China 永利 1105150 June 1, 2004 43 The Complainant is also the proprietor of, and maintains, the following domain names used to market its activities: - The disputed domain name The Complainant contends that the disputed domain name 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 Paragraph 4(a) of the Policy directs that a complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred: (i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the complainant has rights; (ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. On the basis of the arguments and evidence introduced by the Complainant, the Panel concludes as follows: A. Identical or Confusingly Similar The Panel accepts that the Complainant has rights in the WYNN trade marks by virtue of its use and registration of the same as trade marks. The disputed domain name Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trade marks. Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, a complainant bears the burden of establishing that the respondent lacks rights or legitimate interests in the disputed domain name. However, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, the burden of production shifts to the respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy: (i) before any notice to it 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 has been commonly known by the disputed domain name, even if it has acquired no trade mark 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 trade mark or service mark at issue. (See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao Internet foshan co, ltd,WIPO Case No. D2013-0974.) The Complainant has confirmed that the Respondent is not in any way affiliated with the Complainant or otherwise authorized or licensed to use the WYNN trade marks or to seek registration of any domain name incorporating the WYNN trade marks. The Respondent appears to be an individual by the name of Simon Su. There is no evidence suggesting that the Respondent is commonly known by the disputed domain name or that the Respondent has any rights in the term “wynn”. According to the evidence submitted by the Complainant, the disputed domain name resolves to an online gambling and casino website which gives the impression that it is the official website of “Wynn Macau”, the name of the Complainant’s integrated resort in Macau, China. The Respondent’s website reproduces the Complainant’s WYNN trade marks and images of the Complainant’s Wynn Macau Resort. This suggests that the Respondent is using the disputed domain name to mislead Internet visitors by creating an affiliation with the Complainant where there is none. Such use of the disputed domain name does not constitute a bona fide offering of goods or services. The Panel is satisfied that the Complainant has made out a prima facie case showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production thus shifts to the Respondent to establish his rights or legitimate interests in the disputed domain name. Since the Respondent did not file a response to the Complaint and has thus failed to offer any explanation for his registration of the disputed domain name, the prima facie case has not been rebutted. Consequently, the Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of a disputed domain name in bad faith, namely: (i) circumstances indicating that the respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (ii) the respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (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. The Panel accepts that the Complainant and its WYNN trade marks enjoy a strong reputation worldwide and have a significant online presence. There is no doubt that the Respondent was aware of the Complainant’s trade marks when he registered the disputed domain name given that the Respondent’s website gives the impression that it is the official website of “Wynn Macau”, the name of the Complainant’s integrated resort in Macau, China and reproduces the Complainant’s WYNN trade marks and images of the Complainant’s Wynn Macau Resort. Registration of a domain name that incorporates a complainant’s well-known trade mark suggests opportunistic bad faith. The Panel is satisfied that the Respondent’s purpose of registering the disputed domain name was to trade on the reputation of the Complainant and its trade marks by diverting Internet users seeking the Complainant’s services to its own website for financial gain. The reproduction of the Complainant’s trade marks on the Respondent’s website without also displaying a clear disclaimer of a lack of relationship between the Respondent and the Complainant, is indicative of bad faith. As the disputed domain name comprises the Complainant’s trade mark WYNN and offers online gaming and casino services, it is likely that Internet users may be confused and wrongly believe that the disputed domain name is controlled by or somehow associated with the Complainant. This creates a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of the Respondent’s website. As such, the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy apply to the present case. The Center was not able to reach the Respondent at the physical address and fax number recorded with the Registrar, which strongly suggests that the Respondent had provided false contact details at the time of registering the disputed domain name. The Panel considers this further evidence of bad faith. In view of the above finding that the Respondent does not have rights or legitimate interests in the disputed domain name, and taking into account all the circumstances, the Panel concludes that the Respondent has registered and used the disputed domain name in bad faith. Accordingly, the Complainant has satisfied the requirements of the third element under 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 Sok Ling Moi
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Sole Panelist
Date: December 17, 2019
Full & Egal Universal Law Academy