DECISION

Harrah's Las Vegas, Inc. v. Yong Li

Claim Number: FA0212000137092

PARTIES

Complainant is Harrah's Las Vegas, Inc., Las Vegas, NV, USA (“Complainant”).  Respondent is Yong Li, Beijing, CHINA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <harrarhs.com>, registered with iHoldings.com, Inc. d/b/a DotRegister.com.

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.

John J. Upchurch as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on December 16, 2002; the Forum received a hard copy of the Complaint on December 17, 2002.

On December 18, 2002, iHoldings.com, Inc. d/b/a DotRegister.com confirmed by e-mail to the Forum that the domain name <harrarhs.com> is registered with iHoldings.com, Inc. d/b/a DotRegister.com and that Respondent is the current registrant of the name.  iHoldings.com, Inc. d/b/a DotRegister.com has verified that Respondent is bound by the iHoldings.com, Inc. d/b/a DotRegister.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 December 18, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 7, 2003 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@harrarhs.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 January 14, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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 makes the following assertions in the Complaint:

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

2. Respondent does not have any rights or legitimate interests in the <harrarhs.com> domain name.

3. Respondent registered and uses the <harrarhs.com> domain name in bad faith.

B. Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Harrah’s Las Vegas, Inc., has registered its HARRAH’S mark in more than thirty countries worldwide. More specifically, Complainant holds the following service mark registration numbers with the U.S. Patent and Trademark Office for the HARRAH’S mark: 1,067,887; 1,831,759; 2,176,952, and 2,268,340.Additionally, Complainant holds, inter alia, Reg. Nos. 628,320; 628,214; and 772,230 with the Chinese Trademark Office.

Complainant represents a public corporation listed on the New York Stock Exchange, and is one of the largest casino entertainment companies in the world. Since at least as early as 1937, Complainant has continuously used the HARRAH’S service mark to identify hotel and restaurant services and a host of products. Complainant currently operates twenty-six casino entertainment facilities throughout the United States, twenty of those under the HARRAH’S mark.

Complainant’s casino entertainment services marketed under the HARRAH’S mark are supplemented by a heavily trafficked interactive website operated at the domain name <harrahs.com>.

Respondent registered the <harrarhs.com> domain name on October 31, 2002. Complainant’s investigation of Respondent’s use of the disputed domain name indicates that Respondent is using the subject domain name to direct Internet traffic to a series of websites that offer casino, gaming and sportsbook services. Complainant’s submission reveals that the aforementioned gaming and sportsbook websites include the following: “ClubDiceCasino.com” and “The Winners Play Casino and Sportsbook” located at <super-casino.com/bestcasino.htm>.

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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) 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 rights in the HARRAH’S mark through registration with various international trademark authorities, and continuous use of the HARRAH’S mark to denote casino entertainment since 1937.

Respondent’s <harrarhs.com> domain name is confusingly similar to Complainant’s HARRAH’S mark. Respondent’s domain name incorporates an obvious typographical error into Complainant’s HARRAH’S mark. More specifically, Respondent’s second-level domain inserts an “r” into Complainant’s mark. An obvious misspelling of a famous and distinct mark fails to create a domain name capable of overcoming a claim of confusing similarity under Policy ¶ 4(a)(i). Additionally, because top-level domains (such as “.com”) represent a required feature in domain names, their presence is inconsequential when determining identicality or confusing similarity. See Dow Jones & Co., Inc. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that the deliberate introduction of errors or changes, such as the addition of a fourth “w” or the omission of periods or other such generic typos do not change Respondent’s infringement on a core trademark held by Complainant); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top-level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

As stated, Respondent failed to submit a Response in this proceeding; thus, Complainant’s assertions are uncontested. Therefore, the Panel is permitted to accept all reasonable allegations made in the Complaint as true. Further, Respondent has failed to invoke any circumstance that could demonstrate rights or legitimate interests in the domain name. See Stop & Shop Supermarket Co. v. Anderson, FA 133637 (Nat. Arb. Forum Jan. 8, 2003) (finding that “Through its lack of response to the Complaint, Respondent not only fails to meet its burden, but concurrently makes an affirmative gesture that it has no rights or legitimate interests in the disputed domain names”); see also Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).

Complainant’s unrefuted evidence indicates that Respondent uses the infringing domain name to redirect Internet users to other commercial websites. In offering services and products identical to Complainant, Respondent is attempting to capitalize on the fame associated with Complainant’s HARRAH’S mark. Respondent’s opportunistic use of a confusingly similar variation of Complainant’s mark in the subject domain name fails to demonstrate rights or legitimate interests under Policy ¶¶ 4(c)(i) or (iii). Respondent’s domain name only has value because of its unauthorized connection with Complainant’s mark. See Madonna Ciccone p/k/a Madonna v. Dan Parisi and “Madonna.com”, D2000-0847 (WIPO May 28, 2001) (finding that “use which intentionally trades on the fame of another can not constitute a ‘bona fide’ offering of goods and services.  To conclude otherwise would mean that a Respondent could rely on intentional infringement to demonstrate a legitimate interest, an interpretation that is obviously contrary to the intent of the Policy”); see also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where Respondent attempted to profit using Complainant’s mark by redirecting Internet traffic to its own website).

No evidence before this Panel suggests a legitimate connection exists between Respondent and the <harrarhs.com> domain name. Further, Complainant’s uncontested evidence reveals that Respondent’s domain name diverts Internet users to other casino gaming websites, with no apparent connection to the “harrarhs” second-level domain. Complainant’s established rights in the HARRAH’S mark, taken in conjunction with Respondent’s illegitimate use of the domain name, create a presumption that Respondent is not commonly known by the <harrarhs.com> domain name under Policy ¶ 4(c)(ii). See Great S. Wood Pres., Inc. v. TFA Assocs., FA 95169 (Nat. Arb. Forum Aug. 5, 2000) (finding that Respondent was not commonly known by the domain name <greatsouthernwood.com> where Respondent linked the domain name to <bestoftheweb.com>); 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).

Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent was on notice of Complainant’s exclusive rights in the HARRAH’S mark as a result of Complainant’s numerous registrations for its mark in China, Respondent’s recorded place of domicile, and its prior extensive use of the mark in national and international publicity campaigns. Respondent’s subsequent registration of the domain name, despite knowledge of Complainant’s rights, constitutes bad faith registration pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Victoria's Secret v. Hardin, FA 96694 (Nat Arb. Forum Mar. 31, 2001) (finding that, in light of the notoriety of Complainants' famous marks, Respondent had actual or constructive knowledge of the BODY BY VICTORIA marks at the time she registered the disputed domain name and such knowledge constituted bad faith).

Respondent’s bad faith use of the domain name is demonstrated by Respondent’s conduct, which is commonly referred to as typosquatting. Respondent incorporated a common typographical error into Complainant’s famous mark seeking to benefit opportunistically from Internet users unsuspectingly keying in the infringing domain name. This practice of “typosquatting” has been recognized as a bad faith use of a domain name under the UDRP. See e.g. Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May 30, 2000) (awarding <hewlitpackard.com> a misspelling of HEWLETT-PACKARD to Complainant); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (awarding <davemathewsband.com> and <davemattewsband.com>, common misspellings of DAVE MATTHEWS BAND to Complainant); see also Wells Fargo & Co. v. Nadim, FA 127720 (Nat. Arb. Forum Nov. 26, 2002) (determining that Respondent’s typosquatting behavior in registering and using the <wellfargo.com> domain name fulfills the bad faith requirements of Policy ¶ 4(a)(iii)). 

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

DECISION

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

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

John J. Upchurch, Panelist

Dated: January 16, 2003

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