Generic Top Level Domain Name (gTLD) Decisions

Complainant is Little Six, Inc. d/b/a Mystic Lake Casino Hotel, Prior Lake, MN, USA ("Complainant") represented by Michael L. Gannon, of Fish & Richardson, P.C., P.A. Respondent is Anatoly Polishchuk Domain For Sale, Corvallis, OR, USA ("Respondent").

The domain name at issue is "mysticlake.net" registered with Network Solutions, Inc.

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on March 29, 2001; the Forum received a hard copy of the Complaint on March 29, 2001.

On March 30, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "mysticlake.net" is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 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 April 2, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 23, 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@mysticlake.net 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.

On April 26, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed the Hon. James A. Carmody as Panelist.

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.

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

A. Complainant

B. Respondent

The Respondent did not file any response.

Complainant Little Six, Inc., d/b/a Mystic Lake Casino is the wholly-owned arm and instrumentality through which the Shakopee Mdewakanton Sioux (Dakota) Community, a sovereign, federally-recognized Indian tribe, conducts lawful gaming in an exercise of inherent sovereignty and in accordance with the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701, et. seq., and is a corporation organized under the laws of the Shakopee Mdewakanton Sioux (Dakota) Community.

Complainant is the exclusive owner of twelve (12) federal trademark and service mark registrations for marks comprising or containing the words "MYSTIC LAKE" for various entertainment and casino related goods and services, as follows:

In addition, Complainant is the owner of the domain name registrations MYSTICLAKE.COM, MYSTICLAKE.ORG, MYSTICLAKECASINO.COM, MYSTICLAKECASINO.NET, MYSTICLAKECASINO.ORG, MYSTIC-LAKE-CASINO.COM, MYSTICLAKECASINOS.COM, MYSTICLAKE-CASINO.COM, and MYSTICLAKECASINOHOTEL.COM.

Respondent registered the domain name on February 11, 2000, long after Mystic Lake Casino had adopted, used, and registered its MYSTIC LAKE trademarks, service marks, and domain names.

Respondent is not using, and has never used, the disputed domain name. Rather, shortly after Respondent’s registration of the domain name, Respondent sent an e-mail to a representative of Mystic Lake Casino offering to sell or auction the "mysticlake.net" domain name. Respondent made an attempt to sell the domain name registration for $1,000, a price which is nearly 15 times the initial $70 cost to register the domain name.

Respondent has engaged in similarly egregious conduct with respect to the registration of domain names corresponding to other legitimate businesses.

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.

The domain name at issue is "mysticlake.net." This domain name is plainly identical

to Complainant’s MYSTIC LAKE trademarks and service marks. See Snow Fun, Inc. v. James O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name TERMQUOTE.COM is identical to Complainant’s TERMQUOTE mark).

Therefore, the elements of Policy ¶ 4(a)(i) have been satisfied.

Respondent has no legitimate rights or interest in the domain name "mysticlake.net" because (1) Respondent has neither used nor made any demonstrable preparations to use the domain name or any corresponding name in connection with a bona fide offering of goods or services, (2) Respondent has never been commonly known by the domain name, and (3) Respondent is not making, and has never made, a legitimate, noncommercial, or fair use of the domain name.

Respondent is not using, and has never used, the disputed domain name or the MYSTIC LAKE mark for bona fide offering of goods or services. Policy ¶ 4(c)(i). Indeed, the only use Respondent has ever made of the "mysticlake.net" domain name was an attempt to sell the domain name registration for $1,000. See 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).

Respondent registered the subject domain name under the name "DOMAIN NAME FOR SALE." Respondent’s personal name is apparently Anatoly Polishchuk, the name listed as the administrative, technical, and billing contacts on the domain name registration. Respondent is clearly not commonly known, whether as an individual or business, or for any other reason, by the MYSTIC LAKE name. Policy ¶ 4(c)(ii).

Finally, Respondent is not making any noncommercial or fair use of the domain name. Policy ¶ 4(c)(iii).

Therefore, the elements of Policy ¶ 4(a)(ii) have been satisfied.

ICANN Policy ¶ 4(b) sets forth circumstances of bad faith registration and use of a domain name. Offering to sell a domain name for a price in excess of out of pocket costs is evidence of bad faith registration and use. Policy ¶ 4(b)(i).

Given the well-known nature of the MYSTIC LAKE marks, upon registration of the domain name at issue, Respondent knew of Mystic Lake Casino’s rights in the famous MYSTIC LAKE marks. This is further evidenced by the fact that shortly after Respondent’s registration of the domain name, Respondent sent an e-mail to a representative of Mystic Lake Casino offering to sell or auction the "mysticlake.net" domain name. Following Respondent’s initial attempt to sell the domain name registration to Mystic Lake Casino, Respondent used the website accessed by the "mysticlake.net" domain name to advertise the domain name for sale for $1,000. See Matmut v. Tweed, D2000-1183 (WIPO Nov. 27, 2000) (finding bad faith under Policy paragraph 4(b)(i) where Respondent stated in communication with Complainant, "if you are interested in buying this domain name, we would be ready to sell it for $10,000"). These attempts to sell the domain name are evidence of bad faith registration and use of "mysticlake.net."

Respondent’s contact information is further evidence of bad faith attempts to sell the prominent domain name. See Euromarket Designs, Inc. v. Domain For Sale VMI, D2000-1195 (WIPO Oct. 26, 2000) (finding bad faith based on "the manner in which the Respondent chose to identify itself and its administrative and billing contacts both conceals its identity and unmistakably conveys its intention, from the date of the registration, to sell rather than make any use of the disputed domain name"); Parfums Christain Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding bad faith where the Respondent’s WHOIS registration information contained the words, "This is domain names is for sale.").

Lastly, Respondent’s continuing bad faith use of the "mysticlake.net" domain name has the effect of causing persons attempting to find Mystic Lake Casino’s web page at that domain name to believe that Mystic Lake Casino’s site is unavailable, or unreliable. While it is not apparent whether Respondent is achieving any commercial gain from his continuing bad faith activity, even passive activities such as the "parking" or passive holding of a domain name with the knowledge that it infringes the trademark of another is evidence of bad faith. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

Therefore, the elements of Policy ¶ 4(a)(iii) have been satisfied.

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the Panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "mysticlake.net" be transferred from the Respondent to the Complainant.