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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Caesars World, Inc. v. George Godoy and Ceasars Palace Casino
Case No. D2002-0050
1. The Parties
The Complainant is Caesars World, Inc., a Florida corporation having its principal place of business at 3930 Howard Hughes Parkway, 4th Floor, Las Vegas, Nevada 89109, U.S.A. (hereinafter "Complainant").
The Respondents are (1) George Godoy, with his address at 34774 Iroquois Trail, Pine, Colorado 80470, U.S.A., and (2) Ceasars Palace Casino, with its address at 34774 Iroquois Trail, Pine, Colorado 80470, U.S.A. (hereinafter "Respondents").
2. The Domain Names and Registrars
The domain names at issue in this proceeding are <ceasarspalacecasino.net> and <ceasarspalacecasino.org>.
The Registrars are BulkRegister.com, Inc., and Tucows, Inc.
3. Procedural History
This action was brought in accordance with the ICANN Uniform Domain Name Dispute Resolution Policy, dated October 24, 1999 (the "Policy"), the ICANN Rules for Uniform Domain Name Dispute Resolution Policy, dated October 24, 1999 (the "ICANN Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy, in effect as of December 1, 1999.
The Complainant submitted its Complaint in this proceeding, dated January 18, 2002, to the WIPO Arbitration and Mediation Center ("the Center") by e-mail, which was received in hardcopy on January 22, 2002. On January 23, 2002, the Center acknowledged receipt of the Complaint.
On January 24, 2002, the Center requested verification of registration from BulkRegister.com, Inc., and Tucows, Inc. Verification was duly received on January 28 and 24, 2002, respectively.
On January 30, 2002, the Center notified the Respondents of the Complaint, informing the Respondents, inter alia, that the deadline for submitting a Response was February 19, 2002. The Respondents did not file a Response by that date, and on February 27, 2002, the Center issued a Default Notice.
The Complaint was properly notified to the Respondents in accordance with Paragraph 2(a) of the ICANN Rules. Furthermore, the Registrars have confirmed that <ceasarspalacecasino.net> and <ceasarspalacecasino.org> were registered through BulkRegister.com, Inc., and Tucows, Inc., respectively, and that the current registrants of the domain names are George Godoy and Ceasars Palace Casino, respectively.
The Center appointed D. Brian King as Sole Panelist by Notification of March 8, 2002, and the undersigned Sole Panelist has submitted a Statement of Acceptance and Declaration of Impartiality and Independence to the Center.
No further submissions were received after the appointment of the Sole Panelist.
4. Factual Background
The facts relevant to the current matter are set out in the Complaint. Considering the evidence attached to the Complaint and the fact that the Respondents have not filed a Response contesting the Complainant’s contentions, the Panel finds the following facts to have been established.
The Complainant is a corporation widely known for its hotel, gaming and entertainment services, and in particular for its Caesars Palace Casino and Hotel in Las Vegas, Nevada. The Complainant has been in business since 1966 and holds various trademark registrations in the United States and elsewhere for the mark "Caesars Palace" (see Complainant’s exhibits C and G). The Complainant has held trademark registrations for this mark in the United States since 1968 (see Complainant’s exhibit G).
The Complainant owns the domain name <caesarspalace.com>, which has been in operation since June 1996. The Complainant’s web site promotes and advertises Complainant’s goods and services, including its casino in Las Vegas (see Complainant’s exhibit D).
The Complainant appears to have built up considerable goodwill in its mark over the years and annually attracts large numbers of visitors to its hotel and casino, and to sports events held at its premises (see Complainant’s exhibits C and E). In addition, the Complainant annually invests significant amounts of money in promoting, advertising and developing its goods and services. The Complainant’s business also attracts widespread media publicity (see Complainant’s exhibit F).
The contested domain name <ceasarspalacecasino.net>, registered on August 27, 2000, by Respondent George Godoy (see Complainant’s exhibit A), is an active web site being used for the purpose of offering gaming services. The contested domain name <ceasarspalacecasino.org> was registered on April 23, 2001, by Respondent Ceasars Palace Casino (see Complainant’s exhibit A). The administrative and billing contact for that domain name is Respondent George Godoy, and the address provided to the Registrar for Ceasars Palace Casino in connection with that registration is the same as Mr. Godoy’s address as listed in his own registration of <ceasarspalacecasino.net>. The <ceasarspalacecasino.org> site resolves to a web page advertising the services of Liquidpages.com, a corporation providing domain registration and other Internet services (see Complainant’s exhibit I).
On September 6, 2001, the Complainant wrote a "cease and desist" letter to Respondent George Godoy, followed by a second such letter on October 30, 2001 (see Complainant’s exhibits J and K). Mr. Godoy did not answer either letter. It is noted that the Complainant’s two letters addressed only one of the two domain names in dispute, <ceasarspalacecasino.net>, and not <ceasarspalacecasino.org>.
5. Parties’ Contentions
The Complainant relies on the above facts and contends, inter alia, that the three elements of Paragraph 4(a) of the Policy have been met.
The Complainant states that the contested domain names are identical or confusingly similar to the Complainant’s "Caesars Palace" trademark, in which the Respondents have no prior rights. The Complainant argues that the Respondents’ misspelling of "Caesars" as "Ceasars" is not sufficient to avoid causing confusion with the Complainant’s mark, especially as the Respondents’ spelling is a commonly made mistake when referring to the Complainant. Furthermore, the Respondents’ use of the Complainant’s stylized trademark "Caesars Palace" on its <ceasarspalacecasino.net> web site, with the correct spelling, is enough to cause confusion (see Complainant’s exhibit H).
The Complainant further argues that the Respondents have no legitimate interests with respect to the contested domain names, since those domain names were registered well after the Complainant had established rights in the "Caesars Palace" mark through registration and extensive use. In addition, the Complainant states that its mark is so well known that the Respondents could not have been unaware of the Complainant’s legitimate rights and interests in the mark at the time of registration.
Finally, the Complainant submits that the Respondents have registered and are using the domain names in bad faith. The Complainant argues that this is evident from the fact that the Respondents have registered domain names confusingly similar to the Complainant’s famous mark, which also relate to the casino business. The Complainant states that the Respondents’ intention is to divert Internet traffic to its own sites for commercial gain, as users will believe that the two sites are maintained by, sponsored by, affiliated with or endorsed by the Complainant. As further examples of the Respondents’ alleged bad faith, the Complainant indicates that the marks "Bally’s" and "Paris Las Vegas", appearing on the <ceasarspalacecasino.net> web site, are marks used and registered by the Complainant’s affiliated company, Park Place Entertainment Corporation, and that this will only further confuse Internet users (see Complainant’s exhibit M). The Complainant also draws attention to the use of pornographic images and links to pornographic web sites on the <ceasarspalacecasino.net> web site (see Complainant’s exhibit N). This, the Complainant argues, is a further indication of bad faith as it brings the Complainant’s mark into disrepute.
The Respondents, as earlier noted, have not submitted a Response to the Complainant’s Complaint, despite being properly notified of the Complaint.
6. Discussion and Findings
Paragraph 4(a) of the ICANN Policy requires the Complainant to prove each of the following elements in order to obtain relief:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) The respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
Notwithstanding the Respondents’ default, the Complainant retains the ultimate burden of proof on each of these elements. They will be examined in turn below.
As a preliminary matter, the Panel notes that Mr. George Godoy is the registrant of the first contested domain name and the administrative and billing contact for the second; furthermore, the address for both registrants is the same. This gives rise to an inference that the second registrant, "Ceasars Palace Casino", is owned or controlled by Mr. Godoy and makes it appropriate to treat both Respondents together for purposes of the Paragraph 4(a) analysis.
a. Identical or Confusingly Similar
The domain names at issue wholly incorporate the Complainant’s registered trademark "Caesars Palace", albeit that they misspell "Caesars" as "Ceasars", a commonly made mistake. The likelihood of confusion is enhanced by the use of the Complainant’s stylized "Caesars Palace" trademark on the <ceasarspalacecasino.net> web site with the correct spelling, and by the inclusion of the "Bally’s" and "Paris Las Vegas" marks on the same web site, which are marks registered and used by the Complainant’s affiliated company, Park Place Entertainment Corporation. Furthermore, as correctly noted by the Complainant: (1) the words "Caesars Palace" are distinctive and have no inherent connection with gambling; (2) the Complainant’s casino bearing the same name is internationally known; and (3) <ceasarspalacecasino.net> combines a common misspelling of the Complainant’s mark with one of the primary types of services that the Complainant offers under its mark. In these circumstances, the Panel is satisfied that the Complainant has met the first element under Paragraph 4(a).
b. Rights or Legitimate Interests of the Respondents
The Panel is further satisfied, on the evidence presented, that neither Respondent has any rights or legitimate interests in respect of the domain names. In particular, the Panel finds that none of the three circumstances identified in Paragraph 4(c) of the Policy as indicative of legitimate rights or interests is present here.
First, the Respondents are not using the domain names in connection with a bona fide offering of goods or services. The Complainant’s trademarks and its rights and interests in the name "Caesars Palace" must have been known to the Respondents at the time of registering the domain names. The Panel agrees with a previous holding that "use which intentionally trades on the fame of another cannot constitute a ‘bona fide’ offering of goods or services." Madonna Ciccone, p/k/a Madonna v. Dan Parisi and Madonna.com, WIPO Case No. D2000-0847 (October 12, 2000), at page 4.
Second, there is no evidence to suggest that the Respondents have "been commonly known" by the names at issue. The mere fact that the second Respondent has called itself "Ceasars Palace Casino" cannot be construed as creating rights or legitimate interests in the domain names, given that the Complainant’s use of a nearly-identical mark long pre-dates the registration of the contested domain names by the Respondents.
Third, the <ceasarspalacecasino.net> site is clearly being used for commercial gain and hence does not meet the "non-commercial or fair use" criterion. The situation is slightly less clear with respect to the <ceasarspalacecasino.org> site, as there is no direct evidence to verify the Complainant’s allegation that the Respondents are receiving a remuneration from Liquidpages.com in exchange for causing the site to resolve to an advertising web page for the latter. Nevertheless, the Panel is of the view that an inference of use for commercial gain arises in the circumstances here, see below, and in any event the end result is that consumers seeking information about or access to the Complainant will be misleadingly diverted to the Respondents’ web site.
Finally, the Panel notes that it has previously been held that where a mark has a "strong reputation and is widely known ... in the absence of any license or permission from the Complainant to use any of its trademarks or to apply for or use any domain name incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the domain name could be claimed by Respondent." Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055 (March 21, 2000), at page 5. Such is the case here.
For the foregoing reasons, the Panel concludes that the Complainant has satisfied the second element under Paragraph 4(a) in the present case.
c. Bad Faith
Paragraph 4(b) of the Policy sets out four non-exclusive indicia of bad faith:
(i) circumstances indicating that the respondent has registered or acquired the 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark 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 domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line 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 website or location.
Paragraph 4(a)(iii) of the Policy requires that the domain name "has been registered and is being used in bad faith." This requirement is conjunctive, and therefore the Complainant must establish both bad faith registration and bad faith use. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (February 18, 2000), at paragraphs 7.4 to 7.6.
For purposes of the Policy, a finding of any of the four circumstances listed in Paragraph 4(b) will be sufficient to establish registration and use in bad faith. Furthermore, the Panel notes that those four circumstances are not exclusive, and that other circumstances may likewise lead, in a particular case, to a finding of bad faith registration and use. See CCA Industries, Inc v. Bobby R. Dailey, WIPO Case No. D2000-0148 (April 26, 2000), at page 3.
In this case, the Panel is satisfied that the circumstance identified in Paragraph 4(b)(iv) of the Policy has been demonstrated with respect to the domain name <ceasarspalacecasino.net>. It has been established that this domain name is confusingly similar to the Complainant’s mark and that the Respondents have no rights or legitimate interests in the domain name. Furthermore, the site is being used for commercial gain and, in particular, for the offering of services extremely similar to the Complainant’s line of business. In these circumstances, the likelihood of confusion with the Complainant’s "Caesars Palace" mark is clear, and a strong inference exists that the Respondents are intentionally attempting to engender confusion regarding the ownership or sponsorship of the site in order to trade on the Complainant’s mark for their own commercial gain. Further, the Panel finds that the use of pornographic images on the <ceasarspalacecasino.net> site, together with links to pornographic web sites, brings the Complainant’s mark into disrepute and constitutes further evidence of bad faith registration and use.
The situation with respect to the second domain name at issue, <ceasarspalacecasino.org>, is similar except that it does not resolve to an active gambling web site and does not contain pornographic images. Nonetheless, the Panel is persuaded on the facts here that bad faith registration and use have been established with respect to this domain name as well. Bad faith registration is shown by the fact that the domain name wholly incorporates the Complainant’s mark, albeit with a common misspelling, while Respondents must have been aware of the Complainant’s rights and interests in the mark at the time of registration. As for bad faith use, the Panel notes that the web site resolves to a web page advertising the Internet services of Liquidpages.com. Although there is no direct evidence that the Respondents are receiving payment from Liquidpages.com, an inference to that effect reasonably arises on the facts here, given that Liquidpages.com is a commercial site and that the Respondents have failed to challenge the Complainant’s allegation that remuneration is being received. In any event, given the other surrounding circumstances here – including the evidence of bad faith registration, the rather obvious bad faith use of the <ceasarspalacecasino.net> domain name and the apparent identity of the two Respondents – the Panel is satisfied that bad faith use has been sufficiently established with respect to the domain name <ceasarspalacecasino.org> as well.
For the foregoing reasons, the Panel determines that the domain names in dispute are confusingly similar to the mark of the Complainant, that the Respondents have no rights or legitimate interests in respect of the domain names and that they have been registered and are being used in bad faith. Accordingly, the Complaint succeeds and the Panel directs that the domain names <ceasarspalacecasino.net> and <ceasarspalacecasino.org> be transferred to the Complainant.
D. Brian King
Dated: March 22, 2002