DECISION

Donald J Trump and Trump Hotels & Casino Resorts Inc v. Beth Croissette

Claim Number: FA0110000101270

PARTIES

Complainant is Donald J. Trump and Trump Hotels & Casino Resorts, Inc., New York, NY (“Complainant”) represented by Melissa L. Klipp, of Drinker, Biddle & Shanley, LLP.  Respondent is Beth Croissette, Coopersburg, PA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <wintrump.com>, registered with eNom.com.

PANEL

On November 30, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele, as Panelist.  The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on October 24, 2001; the Forum received a hard copy of the Complaint on October 25, 2001.

On October 25, 2001, eNom.com confirmed by e-mail to the Forum that the domain name <wintrump.com> is registered with eNom.com and that Respondent is the current registrant of the name.  eNom.com has verified that Respondent is bound by the eNom.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On October 25, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of November 14, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@wintrump.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent.”  Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from the Respondent to the Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The <wintrump.com> domain name is confusingly similar to Complainant's TRUMP mark.

Respondent has no rights or legitimate interests in the disputed domain name.

Respondent registered the disputed domain name in bad faith.

B. Respondent

Respondent failed to submit a Response.

FINDINGS

Since 1984, Complainant has used the TRUMP mark in commerce in connection with casino and entertainment services.  Complainant has invested millions of dollars into promoting the TRUMP mark and building reputation and goodwill in its services.  The marks have been registered in the United States with the Patent and Trademark Office, and in addition, Complainant maintains numerous marks including the word TRUMP to designate services ranging from casinos to golfing.

Complainant also has a significant presence over the Internet.  Complainant operates several websites incorporating its various marks including: <trump.com>, <trumptaj.com>, <trumpplaza.com>, and <trumpmarina.com>.  Through Complainant's longstanding use of the TRUMP mark in domain names and Web addresses the public has come to expect that domain names incorporating the mark be the Complainant.

Respondent registered the disputed domain name on November 17, 2000.  Respondent has attempted to auction the disputed domain name at <afternic.com>.  Furthermore, Respondent has offered to sell the disputed domain name for $37,500.  Respondent has 1790 other domain names up for auction at <afternic.com>, and is the proprietor of <nameyourdomains.com> a domain name sales business.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Complainant, through its registration and use, has established that it has rights in the TRUMP mark.  Furthermore, the <wintrump.com> domain name is confusingly similar to Complainant's mark because it incorporates Complainant's mark in its entirety and merely adds the generic term "win".  The generic term does not defeat a claim of confusing similarity.  See Arthur Guinness Son & Co. (Dublin) Ltd.  v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the Complainant combined with a generic word or term).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to come forward with a Response and therefore it is presumed that Respondent has no rights or legitimate interest in the <wintrump.com> domain name.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant.  See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”).

It can be inferred based on the passive holding and short time between registration and attempt to auction the disputed domain name that Respondent registered the domain name with the intention of selling it.  See Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights or legitimate interests where the Respondent registered the domain name with the intention of selling the domain name); see also J. Paul Getty Trust v. Domain 4 Sale & Co., FA 95262 (Nat. Arb. Forum Sept. 7, 2000) (finding rights or legitimate interests do not exist when one has made no use of the websites that are located at the domain names at issue, other than to sell the domain names for profit).

Furthermore, Respondent has failed to establish a website at the disputed domain name even though it has owned <wintrump.com> for a year.  Respondent's passive holding of the domain name demonstrates a lack of rights and legitimate interests.  See Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondents have not established any rights or legitimate interests in said domain name); see also Bloomberg L.P. v. Sandhu, FA 96261 (Nat. Arb. Forum Feb. 12, 2001) (finding that no rights or legitimate interest can be found when Respondent fails to use disputed domain names in any way).

There is no evidence, and Respondent does not refute, that Respondent has rights or legitimate interests in respect to the disputed domain name.  See Body Shop Int’l PLC v. CPIC NET & Hussain, D2000-1214 (WIPO Nov. 26, 2000) (finding “that on the evidence provided by the Complainant and in the absence of any submissions from the Respondents, that the Complainant has established that (i) the Respondents are not using and have not used, or are not demonstrating and have not demonstrated, an intent to use the said domain name in connection with a bona fide offering of goods or services; (ii) the Respondents are not and have not been commonly known by the said domain name; and (iii) the Respondents are not making legitimate noncommercial or fair use of the said domain name, without intending to mislead and divert consumers or to tarnish Complainant’s <THE BODY SHOP> trademark and service mark”).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent is thought to have been on notice of the existence of Complainant's mark at the time Respondent registered the infringing domain name, because of the famous and distinctive nature of Complainant's TRUMP mark.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the “domain names are so obviously connected with the Complainants that the use or registration by anyone other than Complainants suggests ‘opportunistic bad faith’”); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).

Furthermore, Respondent's offer to sell the disputed domain name to the Complainant for $37,500 a sum exceeding out-of-pocket expenses resulting from registration, is evidence of bad faith pursuant to Policy ¶ 4(b)(i).  See Little Six, Inc v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding Respondent's offer to sell the domain name at issue to Complainant was evidence of bad faith); see also Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that the Respondent demonstrated bad faith when he requested monetary compensation beyond out of pocket costs in exchange for the registered domain name).

Respondent's registration and passive holding of the <wintrump.com> domain name supports a finding of bad faith pursuant to Policy ¶ 4(a)(iii).   See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose).

Furthermore, Respondent has registered other domain names infringing upon the marks of other famous trademarks.  It has been found that a pattern of such conduct is evidence of bad faith.  See Armstrong Holdings, Inc. v. JAZ Assoc., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the Respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names which infringe upon others’ famous and registered trademarks); see also Encyclopaedia Britannica Inc. v. Shedon.com, D2000-0753 (Sept. 6, 2000) (finding bad faith where the Respondent engaged in the practice of registering domain names containing the trademarks of others).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel

concludes that the requested relief shall be hereby granted.

Accordingly, it is Ordered that the domain name <wintrump.com>

be transferred from Respondent to Complainant.

James P. Buchele, Panelist

Dated:  December 7, 2001

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