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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Trump Entertainment Resorts, Inc. v. Casinova, FBA Partners

Case No. D2007-0962

 

1. The Parties

The Complainant is Trump Entertainment Resorts, Inc., Atlantic City, New Jersey, United States of America, represented by Sughrue Mion, PLLC, Washington DC, United States of America.

The Respondent is Casinova, Gibraltar, United Kingdom of Great Britain and Northern Ireland and FBA Partners, Gibraltar, United Kingdom of Great Britain and Northern Ireland.

The Respondent Casinova is the registered owner of the Disputed Domain Names <magictrumpcasino.com> <magictrump.com> and <trumpcasinogroup.com> and the Respondent FBA is the registered owner of the Disputed Domain Names <luckytrumpcasino.com> and <luckytrump.com>. The Complainant contends that the two Respondents are in fact the same entity. In support of this the Complainant highlights that the website contained at “www.trumpcasinogroup.com” is a portal for the other four Disputed Domain Names and that the same domain name servers hosts each of the websites contained at the Disputed Domain Names. In addition to this, identical support telephone numbers are used at each of the Disputed Domain Name’s websites.

The Panel accepts the above evidence and cites the decision of Yahoo!, Inc and GeoCities v. Data Art Corp., DataArt Enterprises, Inc., Stonybrook Investments, Global Net 2000, Inc., Powerclick, Inc., and Yahoo Search, WIPO Case No. D2000-0587. In this case the panel found that the respondents were in reality the same entity as an identical address was listed as the contact for the domain names, the same telephone number was also given for each and nearly all of the domain names linked to the same content. After a consideration of this case and the evidence offered in the present dispute, the Panel finds for similar reasons and on the balance of probabilities and in the absence of a Response, that it is appropriate to consider that Casinova and FBA Partners should be considered as the same entity for the purposes of this decision.

2. The Disputed Domain Names and Registrar

The disputed domain names <luckytrumpcasino.com> <luckytrump.com> <magictrumpcasino.com> <magictrump.com> and <trumpcasinogroup.com> are registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 29, 2007. On July 4, 2007, the Center transmitted by email to GoDaddy.com, Inc a request for registrar verification in connection with the domain names at issue. On July 5, 2007, GoDaddy.com, Inc transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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 July 9, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 29, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 30, 2007.

The Center appointed Alistair Payne as the sole panelist in this matter on August 10, 2007. 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

Donald J. Trump, the famous entrepreneur and host of the television show “The Apprentice”, is the chairman of the board of directors of the Complainant. He has used the Trump name since 1985, in connection with casino services in the United States of America.

Mr. Trump is the registered owner of the trademarks TRUMP TAJ MAHAL CASINO RESORT, TRUMP TAJ MAHAL CASINO, TRUMP CASTLE, TRUMP PLAZA, TRUMP MARINA, TRUMP CARD, TRUMP 29 and TRUMP (the TRUMP marks).

Mr. Trump operates three casino and hotel facilities Trump Taj Mahal, Trump Plaza and Trump Marina in Alantic City, New Jersey, United States of America. The websites “www.trumptaj.com”, “www.trumpcasinos.com”, “www.trumpplaza.com” and “www.trumpmarine.com” are used by Mr. Trump in connection with the promotion of these casino and hotel facilities.

The Complainant is the exclusive licensee of the TRUMP marks and name.

The Respondent registered the Disputed Domain Names in 2004.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Disputed Domain Names are confusingly similar to the TRUMP marks and name.

In relation to the Disputed Domain Name <trumpcasinogroup.com> the Complainant maintains that the term “casino” is generic in the Complainant’s area of business and cannot distinguish the Disputed Domain Name from the TRUMP marks. The Complainant further contends that the word “group” is merely a descriptive word and does not serve to render the Disputed Domain Name <trumpcasinogroup.com> unique. The Complainant provides evidence in the form of numerous US trademark registrations which include the word “group” in the trademark in connection with casino and gambling services.

The Complainant maintains that the Disputed Domain Names <luckytrumpcasino.com> and <luckytrump.com> are confusingly similar to the TRUMP marks and name as the term “lucky” is commonly used in connection with gambling activities. In support of this, the Complainant also provides evidence of several trademark registrations for casino and gambling activities that include the word “lucky” in the mark registered.

In relation to the final two Disputed Domain Names <magictrumpcasino.com> and <magictrump.com>, the Complainant also asserts that the word “magic” is generic in a gambling context and therefore this will cause confusion between the Complainant’s marks and name and the Disputed Domain Names in question. Again, many registrations featuring the word “magic” in connection with casino services are provided as evidence by the Complainant to support this.

The Complainant believes that the Respondent has no rights or legitimate interests in the Disputed Domain Names. The Complainant provides evidence that the Disputed Domain Names resolve to websites where an Internet user is offered gambling services. The Complainant believes that this is not a legitimate or fair use of the Disputed Domain Names but is in fact an attempt to generate income for the Respondent.

The Complainant also asserts that it did not give the Respondent any authorisation or permission to use the TRUMP marks and name. The Complainant believes that, as the Respondent is in competition with the Complainant, the Disputed Domain Names create a false impression that the Respondent is connected with the Complainant.

The Complainant contends that the Respondent has registered and is using the Disputed Domain Names in bad faith. The Complainant maintains that the Respondent was on constructive notice of the Complainant’s TRUMP marks and name when the Disputed Domain Names were registered in 2004 as, due to the fame of the Trump name in connection with casino services, the Complainant contends that it would be impossible to be ignorant of it.

The Complainant believes that the Trump name was chosen by the Respondent in an attempt to attract Internet users who wish to engage in gambling activities to its website for commercial gain and that this is evidence of use in bad faith on the part of the Respondent.

The Complainant also contends that the Respondent has not registered itself correctly as an online casino as it is not listed on the register of licensed casinos in Gibraltar where the Respondent claims to operate. The Complainant believes that this is further evidence of bad faith as the Respondent is not therefore a legitimate online casino and has breached the laws of Gibraltar and its registration agreement with GoDaddy.com, Inc.

Finally, the Complainant also provides evidence that the Respondent has gained a bad reputation in connection with its gambling websites. Printouts from gambling chat rooms are exhibited in which Internet users are advised to avoid the Respondent’s online gambling services. The Complainant believes that the Respondent’s use of the Disputed Domain Names is damaging the TRUMP marks and name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

If the Complainant is to succeed, it must prove each of the three elements referred to in paragraph 4(a) of the Policy, namely that:

i. the Disputed Domain Names are 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 Disputed Domain Names; and

iii. the Disputed Domain Names have been registered and are being used in bad faith.

The Panel will proceed to establish whether the Complainant has discharged the burden of proof in respect of each of the three elements referred to in paragraph 4(a) of the Policy.

A. Identical or Confusingly Similar

The Complainant has established that the chairman of its board of directors, Mr. Donald J. Trump, is the registered owner of the various TRUMP marks and that he has used the TRUMP name extensively since 1985 in connection with casino activities. The first of the TRUMP marks was filed in 1988. The Complainant is the exclusive licensee of the TRUMP marks and name. The Panel finds therefore, that the Complainant has rights in the TRUMP name.

The Disputed Domain Names are not identical to the Complainant’s TRUMP marks and name. However, the Panel accepts the submissions of the Complainant that the addition of the words “group” “casino” “lucky” and “magic” into the Disputed Domain Names serve only as attempts to dilute the Complainant’s TRUMP marks and are generic terms in the casino and gambling industries. The Panel accepts the Complainant’s evidence that 29 previous domain name dispute decisions have found the TRUMP marks to be distinctive in a gambling context and that other generic terms added to those disputed domain names did not detract from the confusing similarity that existed.

Thus, the Panel finds that the distinctive component of each of the Disputed Domain Names in the present case is the word “TRUMP” and therefore confusingly similarity exists between the Complainant’s TRUMP marks and the Disputed Domain Names. The Panel cites the case of Swatch AG v. Stefano Manfroi, WIPO Case No. D2003-0802 in this regard. Here, the addition of common words such as “news” and “discovery” did not detract from the confusing similarity that existed between the disputed domains and the complainant’s marks.

Accordingly, the Panel finds that the Complainant fulfills paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The burden of proof lies with the Complainant to establish a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Names.

The Panel accepts that there is no relationship between the Complainant and the Respondent. The Respondent is not a licensee of the Complainant nor has it received any authorisation to use the TRUMP marks.

The Panel is of the view that there is nothing in this case to suggest that the Respondent has any rights or legitimate interests in the Disputed Domain Names or in the distinctive TRUMP mark or name. The Disputed Domain Name <trumpcasinogroup.com> links Internet users to the other Disputed Domain Names where gambling websites are offered in competition with the Complainant’s services. This cannot be said to be a legitimate or fair use of the Disputed Domain Names. In the absence of a Reply from the Respondent, the Panel has no evidence to rebut the Complainant’s assertions and support a finding in favor of the Respondent.

Therefore, the Panel finds that the Complainant has fulfilled paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Under paragraph 4(b)(iv) of the Policy it shall be deemed to be evidence of registration and use in bad faith if the use of a domain name intentionally attempts to attract, for commercial gain, Internet users to a site by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of a website.

The Disputed Domain Names resolve or link to websites where gambling services are offered by the Respondent for commercial gain. The Panel is satisfied that the Respondent could not have been unaware of the Complainant’s presence in the gambling community as Mr. Trump is a world-famous entrepreneur and the Trump name has been used in connection with casino activities for over 20 years. Therefore, the Panel is prepared to infer that the registration of the Disputed Domain Names was made in bad faith.

In the absence of any reply from the Respondent, the Panel is of the view that the use of the Trump name in each of the Disputed Domain Names by the Respondent can only have been in an effort to divert Internet users to its competing gambling services for its own commercial gain.

Accordingly, the Panel finds that the Respondent has registered and is using the Disputed Domain Names in bad faith and thus that the Complainant fulfills paragraph 4 (a)(iii) of the Policy.

7. Decision

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 names <luckytrumpcasino.com> <luckytrump.com> <magictrumpcasino.com> <magictrump.com> and <trumpcasinogroup.com> be transferred to the Complainant.


Alistair Payne
Sole Panelist

Dated: August 24, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0962.html

 

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