WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Caesars World, Inc. v. Licensee Techs/Darren Flynn
Case No: D2002-0915
1. The Parties
The Complainant is Caesars World, Inc., a Florida corporation doing business at Las Vegas, Nevada, United States of America, represented by Pitney Hardin & Szuch, LLP of the United States of America.
The Respondent is Licensee Techs/Darren Flynn of Charlestown, St. Kitts and Nevis; G.I. Enterprises/Global Interact, Charlestown, St. Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name is <cybercaesarcasino.net> which is registered with GKG. NET, INC. (formerly GK Group LLC) Texas, U.SA. ("the Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 3, 2002, by email. The Center received the hard copy of the Complaint on October 8, 2002. On October 4, 2002, the Center acknowledged receipt of the Complaint and transmitted by email to the Registrar a request for registrar verification in connection with the domain name at issue. On that same day, October 4, 2002, the Registrar transmitted to the Center by email its verification response confirming that the Respondent is listed as the registrant and providing the administrative, billing and technical contact details of the registrant.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution (the "Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
On October 8, 2002, the Center formally notified the Respondent of the Complaint, in accordance with paragraphs 2(a) and 4(a) of the Rules and on that date, pursuant to paragraph 4(c) of the Rules, the administrative proceeding commenced. Under the paragraph 5(a) of the Rules, the Respondent is required to submit a Response to the Center within 20 days of the date of commencement of the proceeding - in this case, by October 28, 2002. The Respondent failed to respond within that period (or any time thereafter). On October 30, 2002, the Center notified the Respondentís default.
On November 6, 2002, the Center appointed Beverley Pereira as sole panelist in this matter.
The Panel finds that it was properly constituted and appointed in accordance with the Rules and Supplemental Rules. The deadline for the Panel to issue a decision is November 20, 2002.
4. Factual Background
Complainantís Activities and Trademarks
The Panel finds that the following facts have been established by the Complainant with the support of exhibits:
1) The Complainant offers gaming services, hotel services and entertainment services under the name "CAESARS Casino and Hotels" used collectively to refer to:
CAESARS PALACE in Las Vegas, Nevada
CAESARS TAHOE in Stateline Nevada
CAESARS ATLANTIC CITY, in Atlantic City, New Jersey
CAESARS GAUTENG, in South Africa
CAESARS PALACE AT SEA, aboard the Crystal Harmony and Crystal Symphony cruise ships.
2) The Complainant began to offer these services at CAESARS PALACE on August 5, 1966, and progressively expanded through the 1970s to the 1990s when CAESARS PALACE AT SEA began to offer these services on board the above-mentioned cruise ships.
3) The Complainant owns the following trade marks which are registered with the U.S Patent and Trademark Office Ė CAESARS, CAESARS PALACE, CAESARS WORLD, CAESARS TAHOE, CAESARS PALACE AT SEA.
4) The Complainant also has as registered marks in the United States CAESARS WOMAN and CAESARS MAN relating, respectively, to womenís perfume and body products and menís cologne and body products.
It seems to be the case that the Complainant has also registered CAESARS, CAESARS PALACE, CAESAR MAN AND CAESARS WOMAN as marks in several other countries including: Aruba, Australia, the Bahamas, the Benelux Countries, Canada, China, Costa Rica, France, Germany, Greece, Honduras, Hong Kong, S.A.R. of China, Israel, Italy, Jamaica, Japan, Mexico, Malaysia, Netherlands, Antilles, Panama, Singapore, Spain, South Africa, Republic of Korea, Taiwan, Province of China, Thailand, Turkey, the United Kingdom and Venezuela.
5) Since June 1996, the Complainant has maintained a presence on the Internet at "www.caesars.com", its web site devoted to CAESARS Casinos and Hotels. Access to this web site may also be gained through <caesarspalace.com>, <caesarsac.com>, <caesars-tahoe> and <caesarsindiana.com>.
6) Over the years, several prominent sporting and entertainment events have been held at the CAESARS properties and these have been widely televised on a nationwide basis in the United States of America.
On April 22, 2002, the Respondent registered the domain name <cybercaesarcasino.net> with G.KG. NET, INC. (formerly GK Group, LLC). This was reflected in the Easy Whois Database of August 15, 2002, which showed the holder of the domain name and the administrative and billing contact for the domain name as G.I. Enterprises/Global Interact of P.O. Box 642, Charlestown, Nevis, KN.
At the request of the Center the Registrar, on October 4, 2002, identified the registrant of the domain name as Licensee Techs/Darren Flynn. It is not clear when the change of registrant occurred and questions arise as to whether there was a bona fide transfer of the domain name to another person or whether Licensee Techs/Darren Flynn is simply an alias for G.I. Enterprises/Global Interact.
The domain name dissolves into a web site which offers gambling and casino services. It provides links to a web site with the domain name <casinouniverse.com> which, according to the GKG.NET, INC. database as of September 12, 2002, is owned by G.I. Enterprises/Interactive Gaming, P.O. Box 642, Charlestown, Nevis, KN.
5. Partiesí Contentions
The kernel of the Complainantís contention is that the Respondent, by using the domain name to promote online casino and providing links to other online gaming web sites, is seeking to benefit from the value established by the Complainant in the registered CAESARS marks which are famous marks used as designations for the Complainantís casino services.
The Complainant further contends that the domain name "is being used for directly competing services".
The Complainant sought to advance arguments to show that the domain name is virtually identical and/or confusingly similar to the CAESARS trademark and has asserted that the Respondent has no rights or legitimate interests with respect to the domain name and that the Respondent registered and is using it in bad faith. The remedy sought by the Complainant is the transfer of the domain name from the Respondent to the Complainant.
The Respondent failed to reply within the period specified in paragraph 5(a) of the Rules and is therefore in default under paragraph 14 of the Rules. Where default occurs, paragraph 5(e) directs that in the absence of exceptional circumstances, the Panel shall decide the dispute based on the Complaint and, pursuant to paragraph 14, shall draw such inferences from the failure to reply, as it considers appropriate.
The Panel wishes to make it clear that the fact of the Respondentís unresponsiveness does not automatically mean that the Complainant succeeds: the Complainant must make its case and discharge the burden of proving the allegations. The Panel takes the view that the fact that a Respondent has been unresponsive signals the need for the Panel to exercise particular care to enquiry into the question whether due process was followed with respect to the notifications required to be given to the Respondent under the Rules. The Panel is satisfied that the Center has discharged its responsibility under Rule 2(a) of the Rules "to employ reasonably available means calculated to achieve actual notice to the Respondent" using the contact details supplied by the Registrar.
6. Discussion and Findings
This dispute is governed by the Policy and the Rules and is determined in accordance therewith.
Paragraph 4(a) of the Policy directs that the Complainant, to obtain the remedy requested, must prove each of the following:
(1) that the domain name in issue is identical or confusingly similar to the Complainantís trademark; and
(2) that the respondent has no rights or legitimate interests in respect of the domain name; and
(3) that the domain name is registered and is being used in bad faith.
Domain Name is Identical or Confusingly Similar or Identical to Trademark
The Complainant has clearly demonstrated in the body of its Complaint and through exhibits that it has rights in various CAESARS marks registered as trademarks over a period of several years and that such marks are well-known and have been used over long periods of time in connection with the Complainantís business, which includes casino gambling.
According to information supplied by the Registrar, the domain name <cybercaesarcasino.net> was registered on April 22, 2002. Of the three relevant elements of the domain name "cyber", "caesar" and "casino", the dominant element is "caesar" with the prefix "cyber" and the suffix "casino" being generic words. The question is whether the presence of the generic words coupled with the absence of the letter "s" from the dominant word precludes a finding that the domain name is identical or confusingly similar to the trade mark CAESARS. A long line of cases decided under the Policy and Rules has established that if a domain name incorporates a complainantís mark in its entirety it is confusingly similar to that mark even though generic or other words may be added to form the domain name. (See for example, Experian Information Solutions, Inc v Credit Research Inc., WIPO Case No. D2002-0095; Oki Data Americas, Inc. v. ASD Inc., WIPO Case No. D2001Ė0903; Arthur Guinness Son & Co. (Dublin) Ltd v. Healy/Bosth, WIPO Case No. D2001-0026 and Hang Seng Bank Limited v Websen Inc., WIPO Case No. D2000Ė0651). The Panel concurs with this view and, similarly, finds no reason to depart from previous decisions that minor changes in spelling do not alleviate confusion. (See for example Scholastic Inc. v Applied Software Solutions Inc., WIPO Case No. D2000-1629).
Further, the Panel takes the view that the juxtaposition of "caesar" and "casino"in the domain name is likely to cause confusion in the minds of persons who, knowing that the Complainant who has a similar name runs casinos, could, reasonably, assume that the domain name is associated with the Complainant.
The Panel therefore finds that the domain name is confusingly similar to the Complainantís trademark.
Respondent has no Rights or Legitimate Interests in Respect of the Domain Name
Paragraph 4 (c) of the Policy sets out the circumstances in which a Respondent can demonstrate to the Panel the existence of rights in or legitimate interests to the disputed domain name. The circumstances listed are not exhaustive so other relevant evidence can be adduced. In this case, since the Respondent has not replied, no evidence of any kind has been submitted to the Panel to demonstrate the presence of any circumstances, specified in paragraph 4 or otherwise, indicating the Respondentís rights or legitimate interests in the domain name.
But the burden is still on the Complainant to prove that the Respondent has no rights or legitimate interests in terms of paragraph 4(c). In effect, a Complainant has to prove a negative, which is a task of some difficulty having regard to the fact that the matters to be proved are often within the peculiar knowledge of the Respondent.
In this case the Complainant has clearly established its rights to the CAESARS trademark. The panel accepts the Complainantís assertion that "no relationship exists between the Complainant and Respondent that would give rise to any license, permission or authorization by which the Respondent could own or use the domain name.." The Panel therefore finds in favor of the Complainant and holds that the Respondent has no rights or legitimate interests in respect of the domain name.
Evidence of Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out the circumstances (but without limiting the possibility of others) which must be considered as evidence of the registration or use of a domain name in bad faith. The Complainant in this case relies on the circumstances specified in paragraph 4(b)(iv) which states that:
by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the complainantís mark as to the source, sponsorship, affiliation or endorsement of the Respondentís web site or location or of a product or service on its web site or location.
The Complainant argues that at the time of the registration of the domain name the Respondent must have been aware of the Complainantís marks associated with casinos and hotels. Further, the Complainant contends, by using in connection with a gambling web site the domain name which has a confusing similarity to the Complainantís famous trade mark CAESARS, the Respondent sought to divert to the Respondentís web site for commercial gain, consumers looking for the Complainantís web site. The domain name, the Complainant asserts, would lead web users to believe that the Respondentís web site at the domain name was maintained by, sponsored by, affiliated with or endorsed by the Complainant.
The Panel takes note of the evidence which shows a change in the name of the registrant and that the change of name occurred after the Complainant wrote to the Respondent about the domain name. While it could conceivably be quite coincidental that the change occurred at that time, the likelihood of such a coincidence is significantly diminished by evidence which shows that despite some variations in the contact details for the current registrant Licensee Techs/Darren Flynn and the contact details recorded for the previous registrant G.I. Enterprises/Global Interact, the current registrantís address remains Charlestown, Nevis, St. Kitts Nevis, the email address remains the same and all contact details relating to the Technical Contact are identical to those recorded for the Technical Contact for the previous registrant, G. I. Enterprises/Global Interact. It would seem reasonable to infer that the change of name was motivated by a desire to elude the Complainant - an attempt to avoid dealing with the matter. It also seems reasonable to infer that Licensee Techs/Darren Flynn is either an alias for G.I Enterprises/Global Interact or its alter ego.
Evidence adduced shows that the domain name links to a <casinouniverse.com> web site which, according to the GKG.NET, INC. Whois database, is owned by G.I. Enterprises/Interactive Gaming whose recorded address is P.O. Box 642, Charlestown, Nevis, West Indies, KN, the address of the previous registrant. The disputed domain name and the domain name <casinoinverse.com> are linked web sites with the latter offering online gambling. This gives rise to a plausible assumption that the entities connected with the disputed domain name and <casinouiniverse.com> are either the same or affiliates.
The Panel finds that there is sufficient evidence to lead to the conclusion that the domain name was registered and is being used in bad faith.
In accordance with paragraph 15 of the Rules, the Panel finds that the Complainant has established that (1) the domain name is identical or confusingly similar to the Complainantís CAESARS mark (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.
Accordingly, the Panel finds for the Complainant and orders that the domain name <cybercaesarcasino.net> be transferred to the Complainant.
November 19, 2002