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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Las Vegas Sands, LLC v. Micro Aquatics

Case No. D2006-0982

 

1. The Parties

The Complainant is Las Vegas Sands, LLC, of Las Vegas, Nevada, United States of America, represented by the law firm Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, LLP, of United States of America.

The Respondent is Micro Aquatics, of Charlestown, West Indies, Saint Kitts and Nevis.

 

2. The Domain Name and Registrar

The disputed domain name is <sandscasino.com>, and is registered with GKG.NET, INC. (the “Registrar”).

 

3. Procedural History

According to the information provided by the Centre, the history of this proceeding is as follows:

The Complaint was filed with the Centre on August 3, 2006. On August 5, 2006, the Center transmitted by email to the Registrar a Request for Registrar Verification in connection with the disputed domain name, and the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of the disputed domain name and providing the contact details for the administrative, billing, and technical contact.

The Center verified that the Complaint satisfied the formal requirements of the Policy, the Rules, and the Supplemental Rules.

In accordance with Rules paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and this proceeding commenced on August 14, 2006.

In accordance with Rules paragraph 5(a), the due date for Response was September 3, 2006. The Respondent failed to file a Response within the prescribed time limit or at all, and on September 4, 2006, the Center delivered a Notification of Respondent Default to the Respondent.

The Center appointed Bradley J. Freedman as the sole Panelist in this proceeding on September 14, 2006. The Panelist submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with Rules paragraph 7.

The Panel finds that it was properly constituted and appointed in accordance with the Rules and the Supplemental Rules.

Based upon the information provided by the Center, the Panel finds that all technical requirements for this proceeding have been met.

 

4. Factual Background

The following information is derived from the Complaint and supporting evidence submitted by the Complainant.

- The Complainant, its parent company, Las Vegas Sands Corp. (“LVS”), and their predecessors have provided hotel, casino and entertainment services since the 1950s.

- Since 1952, the Complainant, LVS and their predecessors have marketed and promoted their hotel, casino and entertainment services throughout the United States under the trademark SANDS.

- The Complainant is the registered owner of the trademark SANDS, registered in the United States for use in association with “Entertainment Services-Namely, Providing Stage Show, Gambling and Casino Services”, and “Providing Hotel, Restaurant and Lounge Services”. The trademark was registered on 14 September 1982 (Registration No. 1209102). The date of first use referenced in the registration is 1952.

- The Complainant and its affiliates own the following domain names: <lasvegassands.com>, <sandsexpo.com>, <sandscasinomacau.com>, <sandsmacao.com>, <sandsmacaocasino.com>, <sandsmacau.com>, <sandsmacaucasino.com>, <thesandsmacao.com>, <thesandsmacao.net>, <thesandsmacau.com>, and <thesandsmacau.net>. Those domain names are used for websites that advertise and promote the hotel, casino and other businesses operated by the Complainant and its affiliates.

- The Complainant and LVS have sold millions of dollars of services under the trademark SANDS in the past year, and have spent millions of dollars to promote their casinos and hotels under the trademark SANDS throughout the world.

- The Complainant and LVS have not licensed or otherwise permitted the Respondent to use the trademark SANDS or to apply for or use any domain name incorporating that mark.

- The disputed domain name was registered on September 3, 1998.

- The disputed domain name resolves to a web page called “SandsCasino.com”, which merely provides a link to the Respondent’s online gaming website called “Planet Rock Casino” that offers all kinds of online gaming services.

The Respondent has not filed a Response to the Complaint or answered the Complainant’s factual assertions or evidence in any other manner.

 

5. Parties’ Contentions

(a) Complainant

The Complainant contends as follows:

(i) The Complainant is the owner of the trademark SANDS registered in the United States, and the disputed domain name is confusingly similar to the Complainant’s trademark.

(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name.

(iii) The Respondent registered and is using the disputed domain name in bad faith because, among other things, it is using the disputed domain name to intentionally divert Internet users seeking the Complainant’s website to a website that provides commercial advertising.

(b) Respondent

The Respondent has not filed a Response to the Complaint or answered the Complainant’s contentions in any other manner.

 

6. Discussion and Findings

The Policy is narrow in scope. It applies only to disputes involving alleged bad faith registration and use of domain names – conduct commonly known as “cybersquatting” or “cyberpiracy”. The Policy does not apply to other kinds of disputes between trademark owners and domain name registrants. The narrow scope of the Policy reflects its origin as a novel form of Internet dispute resolution designed to balance a wide range of perspectives regarding the regulation of Internet conduct.

The application of the Policy is limited to situations in which a complainant asserts and proves the following requirements set forth in Policy paragraph 4(a): (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) the registrant 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. The burden is on the Complainant to prove all three required elements in order to be entitled to relief under the Policy. It is not sufficient for the Complainant to make assertions without providing proof.

(a) The Respondent’s Default

Rules paragraph 10(a) requires that the Panel ensure that each party is given a fair opportunity to present its case. Rules paragraph 14 reads as follows:

Default

(a) In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the complaint.

(b) If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.

The Respondent was given notice of this proceeding in accordance with the Rules. The Center discharged its responsibility under Rules paragraph 2(a) to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint.

The Panel further notes that the Registrar’s Service Agreement requires the Respondent to keep its contact information (including postal address) accurate and current. The Respondent cannot hide behind the provision to the Registrar of either incorrect or out-of-date contact information.

The Panel finds that the Respondent has been given a fair opportunity to answer the Complaint, and the Panel will proceed to a decision.

The Respondent’s default does not automatically result in a decision in favor of the Complainant. The Complainant must still prove each of the three elements required by Policy paragraph 4(a).

Rules paragraph 15(a) provides that the Panel shall decide the Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. In accordance with Rules paragraph 14(b), the Panel may draw such inferences as are appropriate from the Respondent’s failure to reply to the Complainant’s assertions and evidence or to otherwise contest the Complaint. In the circumstances, the Panel’s decision is based upon the Complainant’s assertions and evidence and inferences drawn from the Respondent’s failure to reply.

(i) Identical or Confusingly Similar

The Complainant is the owner of the trademark SANDS registered in the United States for use in association with, among other things, hotel, casino and gambling services, and uses that mark in association with its business. The Complainant’s assertions in this regard are supported by documentary evidence. The Respondent has not filed a reply to the Complaint or contested the Complainant’s assertions. In the circumstances, the Panel finds that the Complainant has rights in the trademark SANDS.

The Complainant’s SANDS trademark was registered in the United States in September 1982, many years before the Respondent registered the disputed domain name.

The Policy requires that the disputed domain name be “identical or confusingly similar” to the Complainant’s SANDS trademark. Neither the Policy nor the Rules provide any guidance with respect to the test to be applied regarding the confusing similarity requirement of the Policy. Some panels have undertaken a source confusion analysis as required by conventional Anglo-American trademark law, which involves a consideration of all of the circumstances including the strength of the complainant’s mark, the sophistication of likely consumers, and the nature of the wares and services with which the domain name and conflicting mark are used. Nevertheless, the consensus reflected in the decisions appears to be that the appropriate test for confusing similarity is a literal comparison of the disputed domain name and the complainant’s trademark.

The literal comparison approach is supported by a number of considerations:

1. The language of Policy paragraph 4(a) should be interpreted in a purposive manner consistent with the Policy’s remedial nature and objective – to prevent the extortionate behavior known as “cybersquatting”.

2. A literal comparison is consistent with a common purpose of domain names – to indicate the nature and content of the websites to which they resolve.

3. The language of Policy paragraph 4(a) does not invoke a likelihood of confusion test, as contrasted with Policy paragraph 4(b)(iv) which expressly refers to a “likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the registrant’s] website or location or of a product or service on [the registrant’s] website or location” as an indication of bad faith domain name registration and use.

4. The Policy is international and, in the absence of express language, it is inappropriate to import into Policy paragraph 4(a) a test that may not exist under all national trademark laws.

5. The procedure contemplated by the Policy is not well suited to the kinds of factual issues presented by a conventional source confusion analysis. In particular, the Policy is intended to be a relatively quick and inexpensive process, panels must make factual determinations based upon written submissions and documentary evidence, complainants have no right of reply without the panel’s permission, and parties are often not represented by counsel.

For those reasons, the Panel considers the appropriate test for confusing similarity to be a literal comparison of the disputed domain name and the complainant’s mark.

The differences between the Complainant’s SANDS trademark and the disputed domain name are the addition of the descriptive word “casino” and the <.com> suffix. We will consider each difference separately.

The combination of a trademark with a non-distinctive, descriptive word in a domain name does not necessarily change the overall impression of the trademark. In fact, there may even be a greater risk of confusion where the additional words are descriptive of the wares or services with which the trademark is ordinarily used, because there is an increased chance that Internet users will believe that the domain name resolves to a website that is owned or sponsored by, or affiliated with, the trademark owner. See Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787; Harrods Limited v. Peter Pierre, WIPO Case No. D2001-0456; Dr. Ing.h.c.F.Porsche AG v. Vasiliy Terkin, WIPO Case No. D2003-0888; United Distillers Manufacturing, Inc.Diageo North America, Inc.Diageo Brands B.V. v. iVodka.com a.k.a.Alec Bargman, WIPO Case No. D2004-0627; Pivotal Corporation v. Discovery Street Trading Co. Ltd., WIPO Case No D2000-0648; Advanced Micro Devices Inc. v. Dmitry, WIPO Case No. D2000-0530; Caterpillar Inc. v. Roam the Planet Ltd., WIPO Case No. D2000-0275; Telstra Corporation Limited v. Ozurls, WIPO Case No. D2001-0046; and Caixa DґEstalvis I Pensions de Barcelona (“La Caixa”) v. Awanebi David, WIPO Case No. D2006-0632.

The .com suffix is irrelevant for the purpose of determining whether a challenged domain name is identical or confusingly similar to a trademark. Rather, one looks to the second level domain for such a determination, since the .com suffix is merely descriptive of the registry services. See Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787; The Toronto-Dominion Bank v. Boris Karpachev, WIPO Case No. D2000-1571; Ticketmaster Corp. v. Harold R. Brown II and Ted Waitt, WIPO Case No. D2001-0716; and The Chancellor, Masers and Scholars of the University of Oxford v. DR Seagle t/a Mr. Oxford-University, WIPO Case No. D2001-0746.

For those reasons, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s SANDS trademark. Accordingly, the Panel finds that the Complainant has satisfied the first element required by the Policy.

(ii) Rights and Legitimate Interests

The second element required by Policy paragraph 4(a) – the registrant has no rights or legitimate interests in the domain name – requires the Complainant to prove a negative proposition, which can be particularly difficult.

The consensus reflected in the decisions appears to be that the burden on a complainant regarding this element is necessarily light, because the nature of the registrant’s rights or interests, if any, in a domain name lies most directly within the registrant’s knowledge. As a practical matter, once the complainant makes a prima facie showing that the registrant does not have rights or legitimate interests in a domain name, the evidentiary burden shifts to the registrant to rebut the showing by providing evidence of its rights or interests in the domain name.

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name because: (a) the Complainant has not authorized the Respondent’s use of the SANDS trademark; (b) the Respondent is not commonly known by the “sandscasino” name and does not have any related trademark or service mark rights; (c) and the Respondent is knowingly infringing the Complainant’s rights in the SANDS trademark in bad faith and to confuse and divert Internet users to its own website for financial gain.

Except for the assertions in the signed and certified Complaint, the Complainant has not provided any evidence of trademark searches or other investigations to indicate that the Respondent does not have any interest in any marks that include the term “sandscasino” and is not commonly known as “sandscasino”. In some circumstances, the omission of such evidence would be fatal to a complaint under the Policy. Nevertheless, in the circumstances of this dispute, including the apparent lack of connection or relationship between the disputed domain name and the Respondent’s name and the website for which the disputed domain name is used by the Respondent, the signed and certified Complaint together with an adverse inference from the Respondent’s failure to reply to the Complaint or provide any justification for its registration and use of the disputed domain name, are sufficient to satisfy the Complainant’s evidentiary burden.

Even though the Respondent has not filed a reply to the Complaint and has not contested the Complainant’s assertions, it is incumbent upon the Panel to consider whether the Respondent’s use of the disputed domain name demonstrates rights or legitimate interests in the domain name. According to Policy paragraph 4(c), the following circumstances, if proved, demonstrate a registrant’s rights or legitimate interests in a domain name:

(i) the registrant used or demonstrably prepared to use the domain name or a corresponding name in connection with a bona fide offering of goods or services prior to notice of the dispute;

(ii) the registrant (as an individual, business, or other organization) has been commonly known by the domain name, even if it has not acquired trademark rights; or

(iii) the registrant is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the complainant’s mark.

To satisfy the requirements of Policy paragraph 4(c)(i), the Respondent’s use of the disputed domain name must be in connection with a “bona fide” offering of goods or services. The Respondent’s use of the disputed domain name is not “bona fide” within the meaning of Policy paragraph 4(c)(i) because: (a) the disputed domain name is confusingly similar to the Complainant’s registered trademark; (b) there is no apparent connection or relationship between the disputed domain name and the Respondent’s name or the Respondent’s Planet Rock Casino online gaming website; and (c) the Respondent uses the domain name for a web page that merely provides a link to the Respondent’s Planet Rock Casino online gaming website. In addition, the Panel draws an adverse inference from the Respondent’s failure to provide any explanation or rationale for its use of the disputed domain name for its website.

Policy paragraph 4(c)(ii) is not applicable. The Respondent does not contend, and there is no evidence that, the Respondent has been commonly known by the disputed domain name or that the disputed domain name is derived from one of Respondent’s trademarks or trade names.

Policy paragraph 4(c)(iii) is not applicable. The Respondent is using the domain name for a web page that redirects users to a commercial website.

For those reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. See Park Place Entertainment Corporation v. Bowno, WIPO Case No. D2001-1410 (January 2001).

(iii) Registered and Used in Bad Faith

Policy paragraph 4(a)(iii) requires the Complainant to prove that the Respondent registered and has used the disputed domain name in bad faith. The language of Policy paragraph 4(b)(iii) is conjunctive and requires that both bad faith registration and bad faith use be proved.

“Bad faith” within the meaning of the Policy is a term of art, and is not intended to apply to distasteful conduct that might constitute bad faith in the ordinary sense of the term. Policy paragraph 4(b) provides that each the following circumstances are deemed evidence that a registrant has registered and used a domain name in bad faith:

(i) circumstances indicating that the registrant has registered or has 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 the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or

(ii) the registrant 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 registrant has engaged in a pattern of such conduct; or

(iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the registrant 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 its website or location or of a product or service on its website or location.

The Policy expressly states that those circumstances are non-exclusive.

Policy paragraph 4(b)(iv) applies if the Complainant establishes that the Respondent registered and is using the disputed domain name in order to confuse and divert Internet traffic to its website for commercial gain. There is no direct evidence that the Respondent knew of the Complainant or its SANDS trademark, or intended to use the disputed domain name to confuse and divert Internet users. Nevertheless, the Respondent’s knowledge and intention may be determined by common sense inferences from circumstantial evidence.

The Panel finds that the Respondent knew of the Complainant’s SANDS trademark, and registered and is using the disputed domain name in order to confuse and divert Internet traffic to the Respondent’s website, based upon the following circumstances: (a) the Complainant’s registered SANDS trademark is specific to the Complainant in connection with casino and gaming services, and has been widely used and advertised for many years; (b) there is no apparent connection or relationship between the disputed domain name and the Respondent or the Respondent’s Planet Rock Casino online gaming website; (c) the Respondent uses the disputed domain name for a web page that redirects Internet users to the Respondent’s Planet Rock Casino gaming website; (d) the Respondent’s web page displays the words “Sands Casino” in a font that is very similar to the font commonly used by the Complainant in its advertising and its registration of the SANDS trademark; (e) there is no other apparent legitimate justification for the Respondent’s registration and use of the disputed domain name; and (f) the Respondent has not denied any knowledge of the Complainant or its registered trademark. In addition, the Panel draws an adverse inference from the Respondent’s failure to provide any explanation or rationale for its use of the disputed domain name for its website.

A domain name is more than a mere Internet address. It often identifies the Internet site to those who reach it, and sends a message that the website is owned by, sponsored by, affiliated with, or endorsed by the person with the name, or owning the trademark, reflected in the domain name. Accordingly, there is a material risk that Internet users attempting to use the disputed domain name to find the Complainant’s website and accessing the Respondent’s website in error will use the links provided on the Respondent’s website. This deliberate bait and switch diversion of Internet user’s initial interest is a misappropriation of the Complainant’s goodwill associated with its SANDS trademark. See Park Place Entertainment Corporation v. Bowno, WIPO Case No. D2001-1410.

The Panel also finds that the Respondent’s use of the disputed domain name results in commercial gain to the Respondent because the domain name resolves to a web page that redirects Internet users to the Respondent’s commercial, online gaming website.

In the circumstances, the Panel finds, pursuant to Policy paragraph 4(b)(iv), that the Respondent registered and is using the disputed domain name in bad faith to confuse and divert Internet traffic to its website for commercial gain. See EH New Ventures Inc. v. WW Processing, WIPO Case No. D2003-0007.

In the circumstances, the Panel need not consider whether Policy paragraphs 4(b)(i), (ii) or (iii) are applicable, or whether there are other grounds for finding that the Respondent registered and is using the disputed domain name in bad faith.

 

7. Decision

The Complainant has established each of the three requirements set forth in Policy paragraph 4(a) – the disputed domain name is confusingly similar to the Complainant’s SANDS trademark, the Respondent does not have any rights or legitimate interests in the disputed domain name, and the Respondent registered and is using the disputed domain name in bad faith.

The Panel therefore directs that the registration of the disputed domain name <sandscasino.com>, be transferred from the Respondent to the Complainant.

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Bradley J. Freedman
Sole Panelist

Dated: October 19, 2006