DECISION

Harrah's Las Vegas, Inc. v. Yun Cheng

Claim Number:  FA0312000215379

PARTIES

Complainant is Harrah's Las Vegas, Inc., Las Vegas, NV (“Complainant”) represented by David J. Stewart, Esq., of Alston & Bird, LLP, 1201 West Peachtree Street, Atlanta, GA 30309.  Respondent is Yun Cheng, 263 Zuan Rd., Xingxiang, Guangdong 34215, China (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <harrahsbenefitsnow.com>, registered with Iholdings.Com, Inc. d/b/a Dotregistrar.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.

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 3, 2003; the Forum received a hard copy of the Complaint on December 4, 2003.

On December 3, 2003, Iholdings.Com, Inc. d/b/a Dotregistrar.Com confirmed by e-mail to the Forum that the domain name <harrahsbenefitsnow.com> is registered with Iholdings.Com, Inc. d/b/a Dotregistrar.Com and that Respondent is the current registrant of the name. Iholdings.Com, Inc. d/b/a Dotregistrar.Com has verified that Respondent is bound by the Iholdings.Com, Inc. d/b/a Dotregistrar.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 4, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 24, 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@harrahsbenefitsnow.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 2, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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 makes the following assertions:

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

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

3. Respondent registered and used the <harrahsbenefitsnow.com> domain name in bad faith.

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

FINDINGS

Complainant operates twenty-four casino entertainment facilities within the United States under the HARRAH’S mark.  Complainant has continuously used its mark since 1937 and, as a result, it has become one of the most readily recognized marks in the casino entertainment industry.  The United States Patent and Trademark Office (“USPTO”) has granted Complainant numerous registrations for its HARRAH’S mark (e.g. Reg. Nos. 1067887, 1237716, 1831759, 2176952, 2268340).  In addition, Complainant has numerous international registrations for its HARRAH’S mark, including China (e.g. Reg. No. 772230).

Complainant also maintains an online presence, located at <harrahs.com> and <harrahs.benefitsnow.com>.  At the latter site, Complainant’s employees can view complete information regarding Complainant’s insurance programs and enroll in or modify participation in those programs.

Respondent registered the disputed domain name, <harrahsbenefitsnow.com>, on September 1, 2003.  Respondent uses the name to provide a variety of links to health insurance sites, as well as online gambling sites.  Numerous pop-up advertisements are showered upon Internet users upon reaching the disputed domain name.   Presumably, Respondent earns revenue as a member of affiliate programs operated by the owners of these linked sites.  

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 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 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 the USPTO and continuous use since 1937.

Respondent’s domain name is confusingly similar to Complainant’s HARRAH’S mark because the name incorporates Complainant’s mark in its entirety, and merely adds terms describing Complainant’s offered services for its employees.  The addition of a top-level domain name is irrelevant for purposes of Policy ¶ 4(a)(i).  See Nikon, Inc. v. Technilab, Inc., D2000-1774 (WIPO Feb. 26, 2000) (holding that confusing similarity under the Policy is decided upon the inclusion of a trademark in the domain name); see also See Am. Online, Inc. v. Anytime Online Traffic School, FA 146930 (Nat. Arb. Forum Apr. 11, 2003) (finding that Respondent’s domain names, which incorporated Complainant’s entire mark and merely added the descriptive terms “traffic school,” “defensive driving,” and “driver improvement” did not add any distinctive features capable of overcoming a claim of confusing similarity); see also Westfield Corp., Inc. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the <westfieldshopping.com> domain name confusingly similar because the WESTFIELD mark was the dominant element); 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).

Therefore, Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not asserted any rights or legitimate interests in the domain name.  Therefore, the Panel may presume that Respondent lacks rights and legitimate interests in the 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); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where Respondent fails to respond).

Additionally, there is no evidence that Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).  The WHOIS registration information fails to imply that Respondent is commonly known by the name.  See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating, “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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).

Moreover, Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii), for the following reasons: the insurance-related links provided at Respondent’s site compete directly with Complainant’s offered insurance plans available to Complainant’s employees; Respondent uses the name to generate revenue through advertisements; and Respondent is using the name in connection with online casinos.  See MBS Computers Ltd. v. Workman, FA 96632 (Nat. Arb. Forum Mar. 16, 2001) (finding no rights or legitimate interests when Respondent is using a domain name identical to Complainant’s mark and is offering similar services); see also Computerized Sec. Sys., Inc. d/b/a SAFLOK v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services); see also Pioneer Hi-Bred Int’l Inc. v. Chan, FA 154119 (Nat. Arb. Forum May 12, 2003) (finding that Respondent did not have rights or legitimate interests in a domain name that used Complainant’s mark and redirected Internet users to website that pays domain name registrants for referring those users to its search engine and pop-up advertisements); see also Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that Respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name); see also Société des Bains de Mer v. Int’l Lotteries, D2000-1326 (WIPO Jan. 8, 2001) (finding no rights or legitimate interests where Respondent used the <casinomontecarlo.com> and <montecarlocasinos.com> domain names in connection with an online gambling website); see also Imation Corp. v. Streut, FA 125759 (Nat. Arb. Forum Nov. 8, 2002) (finding no rights or legitimate interest where Respondent used the disputed domain name to redirect Internet users to an online casino).

Therefore, Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Complainant’s HARRAH’S mark is registered throughout the world and has achieved substantial fame and notoriety.  The fact that Respondent provides content relating to the source of Complainant’s success, mainly casino entertainment services, evidences an attempt to capitalize on Complainant’s notorious HARRAH’S mark.  This attempt indicates that Respondent had actual knowledge of Complainant’s rights in the HARRAH’S mark.  See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between Complainant’s mark and the content advertised on Respondent’s website was obvious, Respondent “must have known about the Complainant’s mark when it registered the subject domain name”); see also G.D. Searle & Co. v. Pelham, FA 117911 (Nat. Arb. Forum Sept. 19, 2002) (“It can be inferred that Respondent had knowledge of Complainant’s rights in the CELEBREX mark because Respondent is using the CELEBREX mark as a means to sell prescription drugs, including Complainant’s CELEBREX drug”).

In light of the above, Respondent has presumably generated revenue by attracting Internet users to affiliate sites, as a result of user confusion with Complainant’s HARRAH’S mark, evidencing bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent was using the confusingly similar domain name to attract Internet users to its commercial website); Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).  

Therefore, Complainant has established Policy ¶ 4(a)(iii).

DECISION

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

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

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated:  January 16, 2004

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