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WIPO Arbitration and
Caesars Entertainment, Inc. v. WW Processing
Case No. D2004-0225
1. The Parties
The Complainant is Caesars Entertainment, Inc., Las Vegas, Nevada, United States of America, represented by Pitney Hardin Kipp & Szuch LLP, United States of America.
The Respondent is WW Processing, Charlestown, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name <flamingobeachcasino.com> ("Domain Name")
is registered with Tucows.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 23, 2004. On March 24, 2004, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On March 24, 2004, Tucows transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, and technical contact. The Complainant filed an amended Complaint on March 29, 2004. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 1, 2004. In accordance with the Rules, Paragraph 5(a), the due date for Response was April 21, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 22, 2004.
The Center appointed Mr. Felipe Claro as the sole panelist in this matter on
April 28, 2004. 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,
4. Factual Background
1. Complainant provides gaming, hotel, and entertainment services through its operation of the FLAMINGO casinos and hotels, the most famous of which is located in Las Vegas, Nevada, USA. This Casino was first opened in December 1946.
2. Complainant owns several U.S. Patent and Trademark Office registrations for the marks FLAMINGO, FLAMINGO (Stylized), FLAMINGO PLAYERS CLUB and FLAMINGO LAS VEGAS (the "Marks"), which are used to designate and promote Complainant's services. Complainant also owns registrations for the FLAMINGO marks in Egypt and Greece.
3. Since 1946, Complainant has been using the FLAMINGO name and mark.
4. Over one million people stay overnight at Complainant's casino and hotel in Las Vegas per year. Millions more pay a visit to Complainant's casino and hotel in Las Vegas each year without staying overnight. After undergoing renovations in 1996, that expanded its capacity to 3,500 hotel rooms, Complainant's hotel and casino was the largest hotel in the world; today, it is the tenth largest hotel in the world, and the fifth largest in Las Vegas.
5. The FLAMINGO operation also provides gaming services, entertainment services and shopping arcade services, as well as hotel services through its operation of the famous Flamingo Las Vegas and Flamingo Laughlin hotels in Nevada.
6. In addition, according to some, Complainant's FLAMINGO hotel sits on the busiest intersection in the world, Flamingo and Las Vegas Boulevards, which sees 50,000 people pass by every day. Complainant also operates a popular casino/hotel under the FLAMINGO mark in Laughlin, Nevada. In the past Complainant also operated a FLAMINGO hotel in Reno, Nevada.
7. In 2001, Complainant spent approximately $3,500,000 on advertising the Casinos. In 2002, Complainant spent approximately $4,000,000 on advertising the Casinos. In 2003, Complainant spent approximately $7,000,000 on advertising the Casinos.
8. Complainant has had a presence on the Internet in the form of a website devoted to its Las Vegas FLAMINGO casino at "www.lv-flamingo.com" since on or about August 3, 2000.
9. Complainant has had a presence on the Internet in the form of a website devoted to its Laughlin FLAMINGO casino at "www.laughlinflamingo.com" since on or about August 3, 2000.
10. Complainant is also active in preventing use of its famous trademarks on the Internet and has been successful in protecting its rights in over a dozen UDRP complaints.
11. Respondent registered the Domain Name on May 20, 1999.
12. Respondent is in the business of operating on-line casinos at least under
the web site "www.flamingobeachcasino.com".
5. Parties' Contentions
1. Since Complainant's Casino opened, its reputation and fame have grown considerably.
2. Complainant's Marks have gained wide recognition and have become very well known. Moreover, Complainant's Marks were firmly associated with Complainant prior to Respondent's registration of the Domain Name on April 15, 1998, as a result of Complainant's continuous use of the FLAMINGO mark for more than fifty years.
3. Complainant owns a number of U.S. federal trademark registrations for the FLAMINGO mark, and variations thereof all of which are detailed in the Amended Complaint.
4. The FLAMINGO and FLAMINGO PLAYERS CLUB registered marks were registered long before Respondent's registration of the Domain Name.
5. Respondent is a well-known cybersquatter. Respondent has previously offered
on-line casino services under domain names for which Respondent has had not
rights or legitimate interests. In EH New Ventures, Inc. v. WW Processing,
WIPO Case No. D2003-0007, Respondent registered
a variety of domain names similar to the domain name of a well known on-line
casino and in Hard Rock Café International (USA), Inc. v. WW Processing,
WIPO Case No. D2002-0021, Respondent was
using <hardrockcasinos.com> as an on-line casino even though the Respondent
was in no way affiliated with the famous Hard Rock Casino in Las Vegas. In both
cases the panel found for the Complainant. Respondent's registration and use
of the Domain Name <flamingobeachcasino.com> violates the Policy and is
a clear act of cybersquatting.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In view of the lack of a response filed by the Respondent as required under paragraph 5 of the Rules, this proceeding has proceeded by way of default. Hence, under paragraphs 5(e), 14(a) and 15(a) of the Rules, the Panel is directed to decide this administrative proceeding on the basis of the Complainants' undisputed representations. In that regard and apart from judging this proceeding through mere default of the Respondent, the Panel makes the following specific findings.
A. Identical or Confusingly Similar
Respondent's Domain Name is identical or confusingly similar to Complainant's Marks. The Domain Name simply inserts the word "beach" in between the words "Flamingo" and "Casino". Since the term "Beach" may be associated to Beach Resorts where Casinos may operate," "Flamingo Beach Casino" creates the same commercial impression as "Flamingo" or "The Flamingo Casino." Internet users are likely to believe the domain name is related to, associated with, or authorized by Complainant. It is precisely because of this association with Complainant's Marks that Respondent registered the Domain Name. As such, Complainant has satisfied the first element of the Policy that Registrant's Domain Name is identical or confusingly similar to Complainant's Marks.
B. Rights or Legitimate Interests
- Respondent cannot demonstrate any legitimate interest in the Domain Name. Respondent registered the Domain Names after Complainant had established prior rights in their registered marks. The use of FLAMINGO in connection with an active on-line casino is clearly a way for Respondent to gain consumer trust.
- Respondent registered its Domain Name only after Complainant had established rights in its family of FLAMINGO marks. Moreover, Respondent specifically chose as the name for its business entity and domain name, the almost identical name of Complainant's well-known casino.
- A legitimate business entity would attempt to defend its legitimate interest by responding to the Complaint. Respondent's lack of response is indicative of an organization without a legitimate business interest in the domain name.
- Where, as here, Complainant's marks and name are so well known and so widely recognized, and have been used in connection with gaming services for so many years, there can be no legitimate use by Respondent with respect to Casinos.
- The fame and distinctiveness of the Complainant's Marks has been recognized
in a previous matter before this body. In Park Place Entertainment Corporation
v. Anything.com Ltd., WIPO Case
No. D2002-0530, a decision involving the <flamingo.com> domain name,
the panel found that Complainant's FLAMINGO mark "...is well known in the
field of hotels and casinos..." based on "strong consumer identification
of the mark with Complainant's service business, extensive advertisement of
the mark, and its continuous long use in commerce." As set forth in that
decision, it is clear that as used on the Internet as part of a domain name,
the term FLAMINGO is identified with the Complainant.
- While the evidence shows that the FLAMINGO marks are renown throughout the world, in as much as <flamingobeachcasino.com> offers on-line casino gaming and sports bets on U.S. sports, it is clear that the true target of this Domain Name are persons interested in betting on traditional games of chance and U.S. sports events, who would largely consist of U.S. residents to whom these names are famous.
- Furthermore, there exists no relationship between Complainant and Respondent that would give rise to any license, permission, or authorization by which Respondent could own or use the Domain Name, which incorporate in their entirety and/or are confusingly similar to Complainant's Marks. Respondent is not commonly known by the Domain Name and is not making legitimate noncommercial or fair use of them. Indeed, Respondent is not making and has never made any use of the Domain Name apart from associating it with a web site on which users may engage in online gambling activities, to the Respondent's profit.
C. Registered and Used in Bad Faith
- Respondent's actions evidenced bad faith use and registration of the Domain Name under Paragraph 4(b)(iv) of the Policy, because it is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the complainants' marks as to the source, sponsorship, affiliation or endorsement of its web site or location of a service on its web site or location.
- Complainant's attorneys sent a letter via the email address listed in the official WhoIs record and via International Federal Express to the mailing address listed on the official WhoIs record on December 5, 2003. The letter sent by Complainant's attorneys was undeliverable, as the address was incorrect.
- Providing false information on a WhoIs record is evidence of bad faith. There is no disputing that Respondent has provided false contact information to Complainant, has not responded to Complainant's attempts to contact them, has not responded the Complaint and is offering a product (on-line gaming) to markets where it is illegal.
- By operating an on-line casino under the FLAMINGO mark, Respondent is clearly trading off the reputation of Complainant's famous Flamingo properties by implying some association or connection with one of the most trusted names in the industry.
- Bad faith can be found from the fact that Respondent has directed its activities to a U.S. based Internet audience by allowing users to place bets on U.S. based sports teams. As shown above, Complainant has many registrations for their marks in the U.S.
- The Complainant has met the requirements of the Policy by demonstrating
not only their own legitimate interest in Complainant's Marks, as evidenced
by their use of those registered marks, but also that Respondent registered
and has used the Domain Name in bad faith, and that Respondent's sole interest
in the Domain Name is to profit from them.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy
and 15 of the Rules, the Panel orders that the Domain Name, <flamingobeachcasino.com>
be transferred to the Complainant.
Dated: May 12, 2004