DECISION

Harrah's Las Vegas, Inc. v. Dotsan

Claim Number: FA0204000109715

PARTIES

Complainant is Harrah's Las Vegas, Inc., Las Vegas, NV (“Complainant”) represented by David J. Stewart, of Alston & Bird, LLP.  Respondent is Dotsan, Mumbai, INDIA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <harrhas.com>, registered with BulkRegister.

PANEL

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.

Judge Harold Kalina (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on April 16, 2002; the Forum received a hard copy of the Complaint on April 18, 2002.

On April 17, 2002, BulkRegister confirmed by e-mail to the Forum that the domain name <harrhas.com> is registered with BulkRegister and that Respondent is the current registrant of the name.  BulkRegister has verified that Respondent is bound by the BulkRegister 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 18, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of May 8, 2002 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@harrhas.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.

On May 21, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Harold Kalina (Ret.) 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.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A. Complainant

Respondent’s domain name <harrhas.com> is confusingly similar to Complainant’s HARRAH’S mark.

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

Respondent registered and has used the domain name in bad faith.

B. Respondent

Respondent did not submit a Response in this proceeding.

FINDINGS

Complainant is one of the largest casino entertainment companies in the world, running twenty-five casino entertainment facilities in the United States.  Complainant is a wholly-owned subsidiary of Harrah’s Entertainment, Inc., a public corporation trading on the New York Stock Exchange. 

Since at least as early as 1937, Complainant has continuously used the service mark HARRAH’S in the United States and abroad to identify high quality casino, nightclub, theater, and other entertainment services.  Complainant has continuously used its HARRAH’S mark in prominent national and international promotion of its goods and services.  In recognition of Complainant’s exclusive rights in its mark, the United States Patent and Trademark Office has granted Complainant numerous registrations for marks that consist in whole or in part of the HARRAH’S mark, including Reg. Nos. 1,067,887; 1,237,716; 1,831,759; 2,176,952; and 2,268,340.  No other party owns a U.S. registration for any mark that includes the term “Harrah’s” for any goods or services.

Complainant also operates a website at <harrahs.com>.  At this site, consumers can obtain information relating to Complainant’s hotels and casinos.  The site is used by consumers to make hotel reservations and airline reservations to Las Vegas, Nevada. 

Respondent registered the domain name <harrhas.com> some time after Complainant’s operation of <harrahs.com>.  It appears Respondent registered the disputed domain name in hopes that Internet users would misspell “Harrah’s.”  This is due to the fact that Respondent uses the disputed domain name as a means to divert people to a series of websites that offer online casino gaming and sportsbook services.

Complainant’s counsel, on February 8, 2002, sent a cease and desist letter to Respondent via e-mail and international airmail.  Complainant never received a response from Respondent in regard to the cease and desist letter.

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 and draw such inferences it considers appropriate pursuant to paragraph 14(b) 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; and

(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 has established its rights in the HARRAH’S mark through registration with the U.S. Patent and Trademark Office and continuous subsequent use. 

Respondent’s use of <harrhas.com> is confusingly similar to the HARRAH’S mark because the only thing that separates the mark is the transposition of the letters “a” and “h.”  An obvious misspelling of the famous and distinct HARRAH’S mark does not defeat a confusing similarity claim.  See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to Complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the domain name <geociites.com> is confusingly similar to Complainant’s GEOCITIES mark); see generally Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive).

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 disputed 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).  Also, 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”).

Respondent infringes on Complainant’s registered mark by diverting Internet users who misspell the Harrah’s mark to alternate online gambling websites.  Such a use of the disputed domain name is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).  See Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D.Mass 2002) (finding that, because the Respondent's sole purpose in selecting the domain names was to cause confusion with the Complainant's website and marks, it's use of the names was not in connection with the offering of goods or services or any other fair use); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name).

There is no evidence that suggests Respondent is commonly known as “Harrhas” pursuant to Policy ¶ 4(c)(ii).  Respondent is only known to this panel as Dotsan.  See 

Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).

Furthermore, Respondent’s apparently deliberate misspelling of the famous HARRAH’S mark does not constitute a legitimate interest in the domain name, especially in light of the fact that Respondent uses the disputed domain name as a means to divert Internet traffic to other gambling sites.  See Am. Airlines, Inc. v. Zuccarini, FA 95695 (Nat. Arb. Forum Nov. 6, 2000) (finding no rights or legitimate interest in the misspelled domain name <amaricanairlines.com> because Respondent was not authorized to use Complainant's mark); see also Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding that Respondent is not commonly known by the mark contained in the domain name where Complainant has not permitted Respondent to use the NOKIA mark and no other facts or elements can justify prior rights or a legitimate connection to the names “Nokia” and/or “wwwNokia”).

The Panel finds that Respondent has no rights or legitimate interest in respect of the disputed domain name and, thus, Policy ¶ 4(a)(ii) has been satisfied.

     

Registration and Use in Bad Faith

Respondent registered the disputed domain name, which is confusingly similar to Complainant’s mark, in order to divert Internet users to gambling websites.  Complainant is in the gambling business itself and it is clear that Respondent uses the misspelled disputed domain name to attract Complainant’s customers who may be interested in gambling.  A domain name that is designed to divert Internet users to gambling sites due to confusion is considered a bad faith use pursuant to Policy ¶ 4(b)(iv).  See Mars, Inc. v. Double Down Magazine, D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where Respondent linked the domain name <marssmusic.com>, which is identical to Complainant’s mark, to a gambling website); see also Encyclopaedia Britannica Inc. v. Shedon.com, D2000-0753 (WIPO Sept. 6, 2000) (finding that the Respondent violated Policy ¶ 4(b)(iv) by using the domain name <britannnica.com> to hyperlink to a gambling site).

Respondent’s use of the confusingly similar disputed domain name is an obvious attempt to attract Internet users who misspell HARRAH’S by transposing the final “a” and “h.”  This capitalization on a misspelling and likelihood of confusion constitutes bad faith.  See Harrah’s Las Vegas, Inc. v. Online Casino Bonding Group, FA 100571 (Nat. Arb. Forum, Dec. 3, 2001)(finding that a likelihood of confusion between the Respondent’s domain name offering Internet casino services and the Complainant’s famous casino mark indicates bad faith); see generally Bama Rags, Inc. v. Zuccarini, FA 94381 (Nat. Arb. Forum May 8, 2000) (finding that the Respondent’s registration of names of famous people, with slight typographical errors, was evidence of bad faith).

Furthermore, Complainant’s HARRAH’S mark is well-known and it is inconceivable that Respondent could have registered the disputed domain name without knowledge of Complainant’s rights.  If Respondent did not actually know of the HARRAH’S mark, Respondent is considered to have had constructive notice of Complainant’s rights because of the fame and notoriety of the mark.  Respondent’s registration of <harrhas.com>, therefore, constitutes bad faith as an opportunistic attempt to trade on Complainant’s fame and goodwill.  See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration); see also Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18. 2000) (finding that Respondent had actual and constructive knowledge of Complainant’s EXXON mark given the world-wide prominence of the mark and thus Respondent registered the domain name in bad faith).

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that the required relief should be hereby granted.

Accordingly, it is Ordered that the <harrhas.com> domain name be transferred from Respondent to Complainant.

Judge Harold Kalina (Ret.), Panelist

Dated:  May 29, 2002

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