The Complainant is Wynn Resorts Holdings, LLC, United States of America, represented by Mayer Brown LLP, China.
The Respondent is Registration Private, Domains By Proxy, LLC / ?? ?, Philippines. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 18, 2019. On December 18, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 19, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. On December 24, 2019, the Center sent a communication to the Registrar requesting clarification as to whether “?? ?” is indeed the Registrant of the disputed domain name, to which the Registrar replied on December 26, 2019, in the affirmative. The Center sent an email communication to the Complainant on January 9, 2020 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 January 10, 2020. 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 January 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 5, 2020. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on February 6, 2020. The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on February 18, 2020. 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 in this proceeding is Wynn Resorts Holdings, LLC, a company headquartered in the United States, which operates a number of resorts throughout the world, which offer hotel rooms, retail stores and casino activities and gaming. The Complainant is mainly active in the United States (particularly in Las Vegas) and in China (particularly in the Macau Special Administrative Region, China (“Macau”)), where it operates two large resorts, namely Wynn Macau (opened in 2006) and Wynn Palace (opened in 2016). The Complainant owns a large portfolio of trademark registrations (word and device marks) for WYNN, for instance, Chinese trademark registration number 5304536, registered on July 7, 2009 and Vietnamese trademark registration number 193111, registered on October 8, 2012. The Complainant also owns a portfolio of related trademarks, including the following: WYNN PALACE 永利皇宫 (for example Chinese trademark registration number 13285165, registered on April 21, 2015), and 永利 (WYNN in Chinese characters, for example Chinese trademark registration number 18375788, registered on March 7, 2017). The disputed domain names were both registered by the Respondent on the same date, October 10, 2019. The Complainant provides evidence that the disputed domain names are currently linked to the same active website in Chinese, which is operated as an online casino platform. 5. Parties’ Contentions A. Complainant The Complainant essentially contends that the disputed domain names are confusingly similar to its trademarks for WYNN, that the Respondent has no rights or legitimate interests in respect of the disputed domain names, and that the disputed domain names were registered, and are being used in bad faith. The Complainant claims that its trademarks are famous and well-regarded in the hotel and casino sector, and provides evidence of its marketing materials, press coverage and awards. Moreover, the Complainant provides evidence that the disputed domain names are both linked to the same active website, which it claims is taking unfair advantage of its trademarks. The Complainant essentially contends that the use made of its marks by the Respondent does not confer any rights or legitimate interests in respect of the disputed domain names, and constitutes use in bad faith. The Complainant requests the transfer of the disputed domain names. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Policy requires the Complainant to prove three elements: (i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) the disputed domain names have been registered and are being used in bad faith. Based on the evidence and arguments submitted, the Panel’s findings are as follows: A. Identical or Confusingly Similar The Panel finds that the Complainant has shown that it has valid rights in the mark WYNN, based on its intensive use and registration of the same as a trademark in several jurisdictions. As to confusing similarity, the disputed domain names consist, each time, of the Complainant’s trademark WYNN, combined with a seemingly arbitrary combination of letters (respectively “wapapps” and “wap”). The applicable generic Top-Level Domains (“gTLD”) (“.com” in this case) is viewed as a standard registration requirement, and may as such be disregarded by the Panel, see in this regard the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), section 1.11.1. The Panel refers to the WIPO Overview 3.0, section 1.7, which states: “in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing” (see also Wal-Mart Stores, Inc. v. Richard McLeod d/b/a For Sale,WIPO Case No. D2000-0662). The Panel concludes that the disputed domain names contain, each time, the entirety of the Complainant’s trademark, as their only distinctive feature. The addition of arbitrary combinations of letters without any clear specific meaning or reference (respectively “wapapps” and “wap”) does not prevent a finding of confusing similarity. Accordingly, the Panel rules that the disputed domain names are confusingly similar to the Complainant's trademarks, and that the Complainant has satisfied the requirements for the first element under the Policy. B. Rights or Legitimate Interests On the basis of the evidence and arguments submitted, the Panel holds that the Complainant makes out a prima facie case that that the Respondent is not, and has never been, an authorized reseller, service provider, licensee or distributor of the Complainant, and is not making legitimate noncommercial use or fair use of the Complainant's trademarks. As such, the Panel finds that the burden of production regarding this element shifts to the Respondent (see WIPO Overview 3.0, section 2.1). However, no evidence or arguments have been submitted by the Respondent in reply. Moreover, reviewing the facts, the Panel notes that the disputed domain names both direct to the same webpage, which shows a clear intent on the part of the Respondent to obtain illegal commercial gains by diverting consumers to its interactive gambling platform, by taking unfair advantage of the goodwill and reputation of the Complainant’s trademarks covering the same and/or related commercial sector for WYNN and 永利. Furthermore, the Panel notes that the nature of the disputed domain names, being both confusingly similar to the Complainant’s trademarks, carries a high risk of implied affiliation with the Complainant (see also WIPO Overview 3.0, section 2.5.1), and that the Respondent is not commonly known by any of the disputed domain names. On the basis of the foregoing elements, the Panel considers that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply, and that the Complainant has satisfied the requirements of the second element under the Policy. C. Registered and Used in Bad Faith The registration of the disputed domain names, which incorporate the Complainant’s trademark for WYNN in its entirety, except for the addition of seemingly arbitrary letter combinations in the disputed domain names, is clearly intended to mislead and divert consumers away from the Complainant’s official websites, to the Respondent’s online casino platform, competing with the Complainant’s services. Given the strong reputation and fame of the Complainant’s trademarks, obtained years before the registration date of the disputed domain names, the Panel holds that the registration of the disputed domain names was obtained in bad faith. In the Panel’s view, the preceding elements clearly indicate the bad faith of Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain names in bad faith. As to use of the disputed domain names in bad faith, the disputed domain names currently link to an online casino platform, which directly competes with the services offered by the Complainant and which prominently displays a variety of the Complainant’s trademarks, including its WYNN, 永利 and 永利皇宫 trademarks. Moreover, such website also clearly provides misleading and wrong information at the “About Us” section of the website, at the bottom of the home page, and in its Copyright notice (“Copyright © 2004-2020 WYNN MACAU ALL RIGHT Reserved”), which all purport, amongst other elements, that the Respondent is part of, or is connected to, the Wynn Macau Casino. This means that the Respondent clearly tries to pass its website off as an official website operated by the Complainant. The foregoing elements lead the Panel to conclude that the Respondent is using the disputed domain names in bad faith, to take unfair advantage of the Complainant’s trademarks and reputation, for commercial gains. The Panel therefore rules that it has been demonstrated that the Respondent is using the disputed domain names in bad faith. Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel rules that the Complainant has satisfied the requirements of the third element under 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 names Deanna Wong Wai Man
Sole Panelist
Date: February 28, 2020
Full & Egal Universal Law Academy