Complainant is Caesars License Company, LLC, United States of America (“United States” or “US”), represented by Greenberg Traurig, LLP, United States.
Respondents are Super Privacy Service LTD c/o Dynadot, United States / Mike, Canada, and 王化德 (Wang Hua De), China.
2. The Domain Names and RegistrarsThe disputed domain name
The disputed domain names
DNSPod, Inc.
Together Dynadot, LLC and DNSPod, Inc. are hereinafter referred to as the “Registrars”.
3. Procedural HistoryThe Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 27, 2021. On August 27, 2021, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On August 30, 2021, the Registrars respectivelly transmitted by email to the Center their verification responses disclosing registrants and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on September 6, 2021, providing the registrants and contact information disclosed by the Registrars, and inviting Complainant to submit an amendment to the Complaint. Complainant filed the first amended Complaint in English on September 9, 2021. In response to the Center’s notification regarding information of one of the Registrars, Complainant filed the second amended Complaint in English on September 10, 2021.
On September 6, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On September 9, 2021, Complainant requested that English be the language of the proceeding. Respondents did not comment on the language of the proceeding.
The Center verified that the Complaint together with the first amended Complaint and the second 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 Respondents in English and Chinese of the Complaint, and the proceedings commenced on September 15, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 5, 2021. Respondents did not submit any response. Accordingly, the Center notified Respondents’ default on October 6, 2021.
The Center appointed Yijun Tian as the sole panelist in this matter on October 21, 2021. 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 A. ComplainantComplainant, Caesars License Company, LLC, is a company incorporated in the US. Complainant operates the Caesars Palace casino hotel, which was opened in 1966, and gaming venue based in Las Vegas, Nevada in the US. In addition to the food and entertainment, Complainant also operates the Sportsbook at Caesars Palace.
Complainant has rights in the CAESARS and CAESARS related marks. Complainant is the owner of numerous CAESARS trademarks worldwide, including the US trademark CAESARS, registered on March 6, 1973 (the US Trademark registration number 0954684); the US trademark CAESARS SPORTS, registered on May 8, 2018 (the US Trademark registration number 5466397); and the Chinese trademark CAESARS registered on October 6, 2009 (the Chinese Trademark registration number 5398759).
B. RespondentsRespondents are Mike, Canada, and 王化德 (Wang Hua De), China. The disputed domain name
Complainant contends that the disputed domain names are confusingly similar to Complainant’s CAESARS or CAESARS SPORTS trademarks. Simply adding the term “book(s)” or misspelling “sport” as “spots” in tandem with the CAESARS/CAESARS SPORTS trademarks does not inhibit the finding of confusing similarity.
Complainant contends that Respondents have no rights or legitimate interests in respect of the disputed domain names.
Complainant contends that Respondents have registered and used the disputed domain names in bad faith.
Complainant requests that the disputed domain names be transferred to Complainant.
B. RespondentsRespondents did not reply to Complainant’s contentions.
6. Discussion and Findings 6.1. Consolidation of RespondentsThe Panel notes that the present Complaint has been filed against multiple Respondents and Complainant has submitted a request for consolidation. On this subject, section 4.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) provides inter alia as follows:
“The WIPO Center may accept, on a preliminary basis, a consolidated complaint where the criteria described below are prima facie met. Any final determination on consolidation would be made by the appointed panel, which may apply its discretion in certain circumstances to order the separation of a filed complaint.”
The Panel finds that Complainant has provided sufficient evidence to establish that the disputed domain names or corresponding websites are subject to common control, such as the name servers of the disputed domain names are identical, and the disputed domain names all point to the same IP address. The connection between the disputed domain names is reinforced by the facts that the disputed domain names all incorporate Complainant’s CAESARS mark in its entirety with an additional term “sportbook” or “spotsbooks” or “sportbooks” and all resolve to PPC websites, which have similar webpage layouts and contain similar commercial links.
In all of these circumstances, the Panel considers that it is procedurally efficient to allow Complainant to proceed with the single Complaint as filed and is content that such consolidation is fair and equitable to all of the Parties.
6.2. Language of the ProceedingThe language of the Registration Agreement for the disputed domain name
(i) the disputed domain names are written in English using Latin script, rather than Chinese script;
(ii) the disputed domain names entirely incorporate Complainant’s CAESARS marks in full, and CAESARS is the famous brand of Complainant, a well-known US company;
(iii) the disputed domain names all resolve to websites written entirely in the English language rather than Chinese, including websites displaying Complainant’s marks, which contain PPC or affiliate advertising links to other websites written in English that are competitive with Complainant;
(iv) the disputed domain names are owned or commonly controlled by Respondent Mike, who is purportedly located in Novia Scotia, Canada, where the official language is English; and
(v) Complainant’s counsel has no familiarity with reading and writing in the Chinese language, and therefore, conducting the proceeding in Chinese would require commissioning a translator, adding unnecessary cost to Complainant who already bears the cost of filing, and it would cause delay in commencement of the proceeding.
Respondents did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding.
Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical applicance co. ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593). The language finally decided by the panel for the proceeding should not be prejudicial to either one of the parties in its abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). Section 4.5.1 of WIPO Overview 3.0 further states:
“Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.
Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that Respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of Complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving Respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering Complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.” (See also L’Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585).
Considering the following, the Panel has decided that English should be the language of the proceeding: (a) the Panel finds that the disputed domain names are subject to the common control, and the language of the Registration Agreement for the disputed domain name
Accordingly, the Panel finds that the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English.
6.3. Substantive IssuesParagraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain names should be cancelled or transferred:
(i) the disputed domain names registered by Respondents are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondents have 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.
On the basis of the evidence introduced by Complainant and in particular with regard to the content of the relevant provisions of the Policy (paragraphs 4(a)-(c)), the Panel concludes as follows:
A. Identical or Confusingly SimilarThe Panel finds that Complainant has rights in the CAESARS marks. The disputed domain names
Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name”. (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662).
Further, in relation to the gTLD, the WIPO Overview 3.0 further states: “The applicable Top-Level Domain (“TLD”) in a domain name (e.g., “.com”, “.club”, “.nyc”) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” (WIPO Overview 3.0, section 1.11.1.)
The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy.
B. Rights or Legitimate InterestsParagraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondents have rights or legitimate interests in the disputed domain names:
(i) before any notice to Respondents of the dispute, the use by Respondents, or demonstrable preparations to use, the disputed domain names or a name corresponding to the disputed domain names in connection with a bona fide offering of goods or services; or
(ii) Respondents have been commonly known by the disputed domain names, even if Respondents have acquired no trademark or service mark rights; or
(iii) Respondents are making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish Complainant’s trademarks.
The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant’s contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1 and cases cited therein).
According to the Complaint, Complainant operates the Caesars Palace casino hotel, which was opened in 1966, and gaming venue based in Las Vegas, Nevada in the US. In addition to the food and entertainment, Complainant also operates the Sportsbook at Caesars Palace. Complainant has registered CAESARS marks internationally, including the US since 1973, and China since 2009, which long precede Respondents’ registration of the disputed domain names (in 2021).
Based on the following reasons the Panel finds that Respondents have no rights or legitimate interests in the disputed domain names:
(a) There has been no evidence adduced to show that Respondents are using the disputed domain names in connection with a bona fide offering of goods or services. Respondents have not provided evidence of a legitimate use of the disputed domain names or reasons to justify the choice of the term “caesars” in the disputed domain names and in their business operations. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondents to use the CAESARS marks or to apply for or use any domain names incorporating the CAESARS marks, and Respondents have, through the use of confusingly similar domain names and their webpage contents, created a likelihood of confusion with the CAESARS marks.
(b) There has been no evidence adduced to show that Respondents have been commonly known by the disputed domain names. There has been no evidence adduced to show that Respondents have any registered trademark rights with respect to the disputed domain names. Respondents registered the disputed domain names in 2021, long after the CAESARS marks became internationally known. The disputed domain names are confusingly similar to the CAESARS marks.
(c) There has been no evidence adduced to show that Respondents are making a legitimate noncommercial or fair use of the disputed domain names. By contrast, the Panel finds that the disputed domain names all resolve to PPC websites (which have similar webpage layouts), which contain links for services that are related to or compete with Complainant, including links labeled “Hotel Room”, “Caesars Palace Hotel”, and “Sportshop”. It seems that Respondents made profits through the Internet traffic attracted to the websites under the disputed domain names. (See BKS Bank AG v. Jianwei Guo,WIPO Case No. D2017-1041; BASF SE v. Hong Fu Chen, Chen Hong Fu,WIPO Case No. D2017-2203.)
The Panel notes that Respondents have not produced any evidence to establish their rights or legitimate interests in the disputed domain names.
Accordingly, Complainant has established that Respondents have no rights or legitimate interests in the disputed domain names. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy sets out four circumstances, which, without limitation, shall be evidence of the registration and use of the disputed domain names in bad faith, namely:
(i) circumstances indicating that Respondents have registered or acquired the disputed domain names primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registrations to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondents’ documented out-of-pocket costs directly related to the disputed domain names; or
(ii) Respondents have registered the disputed domain names in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondents have engaged in a pattern of such conduct; or
(iii) Respondents have registered the disputed domain names primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain names, Respondents have intentionally attempted to attract, for commercial gain, Internet users to Respondents’ websites or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondents’ websites or locations or of a product or service on the websites or locations.
The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondents have registered and are using the disputed domain names in bad faith.
(a) Registration in Bad Faith
The Panel finds that Complainant has a widespread reputation in the CAESARS marks with regard to its products and services. As mentioned above, CAESARS marks are registered internationally, including in China (since 2009). It is not conceivable that Respondents would not have had actual notice of the CAESARS marks at the time of the registration of the disputed domain names (in 2021) particularly given that the disputed domain names include the additional terms to the CAESARS marks which appear to refer to the Sportsbook at Caesars Palace operated by Complainant. The Panel therefore finds that the CAESARS mark is not one that a trader could legitimately adopt other than for the purpose of creating an impression of an association with Complainant (The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610).
Moreover, Respondents have chosen not to respond to Complainant’s allegations. According to the UDRP decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, “the failure of Respondent to respond to the Complaint further supports an inference of bad faith”. See also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787.
Thus, the Panel concludes that the disputed domain names were registered in bad faith.
(b) Use in Bad Faith
Respondents are using the websites resolved by the disputed domain names to provide links for services that related to or compete with Complainant, including links labeled “Hotel Room”, “Caesars Palace Hotel”, and “Sportshop”. Thus, the Panel concludes that Respondents are currently using the confusingly similar disputed domain names with the intention to attract, for commercial gain, Internet users to Respondents’ websites.
Given the reputation of the CAESARS marks, the Panel finds that the public is likely to be confused into thinking that the disputed domain names have a connection with Complainant, contrary to the fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the websites to which the disputed domain names resolve. In other words, Respondents have through the use of the confusingly similar disputed domain names created a likelihood of confusion with the CAESARS marks. Moreover, as mentioned above, the disputed domain names all resolve to PPC websites in English, which contain links for services that are related to or compete with Complainant, presumably for commercial gain.
The Panel therefore concludes that the disputed domain names were registered and are being used by Respondents in bad faith. Such use of the disputed domain names are also disruptive in relation to the interests of Complainant.
In summary, Respondents, by choosing to register and use the disputed domain names, which are confusingly similar to the CAESARS mark, intended to ride on the goodwill of this trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondents, the choice of the disputed domain names and the conducts of Respondents as far as the websites to which the disputed domain names resolve are indicative of registration and use of the disputed domain names in bad faith.
The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy.
7. DecisionFor all 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
Yijun Tian
Sole Panelist
Dated: November 23, 2021