WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pinnacle Entertainment, Inc. v. Keller Consulting, LLC
Case No. D2015-1463
1. The Parties
Complainant is Pinnacle Entertainment, Inc. of Las Vegas, Nevada, United States of America, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
Respondent is Keller Consulting, LLC of Baton Rouge, Louisiana, United States.
2. The Domain Name and Registrar
The disputed domain name is <lauberge.casino>; it is registered with Network Solutions, LLC (“Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (“Center”) on August 18, 2015. That day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 19, 2015, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact information and other details of the registration.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (“Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 25, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 14, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 15, 2015.
The Center appointed Debra J. Stanek as the sole panelist in this matter on September 28, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Complainant operates gaming entertainment properties in the United States, including two casinos in Louisiana, “L’Auberge Lake Charles”, opened in 2005, and “L’Auberge Baton Rouge”, opened in 2012. Complainant owns United States federal trademark registrations for the mark L’AUBERGE for a variety of products and services, including retail stores, footwear, and apparel and other items, as well as two registrations for casino services, each issued in February 2012 and claiming a date of first use in 2005.
The disputed domain name was registered on May 31, 2015. It is not being used with an active website. Instead, visitors are presented with a page, apparently provided by the Registrar, entitled “casino.com,” that bears an “under construction” message and provides links to other pages, including links related to casinos and gambling.
5. Parties’ Contentions
1. Identical or Confusingly Similar
Complainant owns numerous United States federal trademark registrations for the mark L’AUBERGE for various goods and services, including casino services.
The disputed domain name is identical to Complainant’s L’AUBERGE mark except for the apostrophe, which cannot be replicated in a domain name and which has little impact on appearance and none on pronunciation of the domain name.
Although the generic Top-Level Domain (gTLD) is generally disregarded when comparing a domain name to a mark, here, use of the “.casino” gTLD reinforces the overall confusion generated.
2. Rights or Legitimate Interests
Respondent has no rights or legitimate interests in the disputed domain name.
Respondent is using the disputed domain name to lead to a page that generates “pay-per-click” revenue. This shows that the domain name is being used for commercial gain. Further, the links are related to Complainant’s casino services. Respondent has intentionally registered the domain name in order to profit financially from Complainant’s goodwill and the Internet traffic its mark L’AUBERGE attracts, creating “initial interest confusion.”
Further, even if the casino-related links are automatically generated, Respondent cannot disclaim responsibility for them. In addition, the display of the heading “casino.com” – a reference (but not a link) to a different website – on the parked page cannot legitimize the casino- and gambling-related links.
Complainant has been unable to locate any pending applications or registered trademarks for “L’AUBERGE” in Respondent’s name.
Respondent therefore has not made use of, or demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services.
3. Registered and Used in Bad Faith
Respondent registered and is using the disputed domain name in bad faith.
As of the May 31, 2015 registration of the domain name, Complainant’s brand L’AUBERGE and casino services were well established, as were its two Louisiana casinos. Complainant’s Baton Rouge casino is approximately ten miles from the center of Baton Rouge, where Respondent is located and where its principal lives, according to Respondent’s website (“www.kellerconsulting.com”). Accordingly, it would be preposterous for Respondent to claim that it is unaware of Complainant’s L’AUBERGE mark.
Respondent’s knowledge of Complainant’s mark is substantiated by its selection of the new gTLD “.casino,” intended for casinos, online gaming sites, and related parties and bloggers. According to Respondent’s website, it is a business consulting firm that specializes in small and start up businesses, and does not fit within any of those casino-related categories.
“L’auberge” is a French word meaning “restaurant”, “inn”, or “tavern”, none of which correlate to a casino or gambling. Thus, the use of the new gTLD would not be a natural pairing. It is implausible that Respondent registered a domain name corresponding to a local casino resort’s trademark attached to a gTLD that relates to the gambling industry by happenstance.
Internet users are being attracted to the page associated with the domain name due to the confusion caused by the use of Complainant’s mark L’AUBERGE and the Internet users arrive at a website that generates “pay-per-click” revenue.
Complainant attempted to resolve this matter amicably on June 3, 2015. After receiving no response, it followed up and spoke to Respondent’s principal in mid-June. After Respondent indicated that it was consulting with counsel, Complainant did not receive a response from Respondent or its counsel and initiated these proceedings.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
In order to prevail, a complainant must prove, as to the disputed domain name, that:
(i) It is identical or confusingly similar to a mark in which the complainant has rights.
(ii) The respondent has no rights or legitimate interests in respect to it.
(iii) It has been registered and is being used in bad faith.
Policy, paragraph 4(a). The Policy sets out examples of circumstances that may evidence a respondent’s rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as circumstances that may evidence a respondent’s bad faith registration and use, see Policy, paragraph 4(b).
A. Identical or Confusingly Similar
The disputed domain name is identical to Complainant’s mark apart from the absence of an apostrophe. The Panel finds that the absence of punctuation in the domain name does not affect the nature of the identity or what is communicated by the domain name.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights.
B. Rights or Legitimate Interests
The Panel, consistent with the consensus view, finds that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing that a respondent lacks rights or legitimate interests. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.1 (once complainant makes a prima facie case, the burden of showing rights or legitimate interests in the domain name shifts to respondent).
Paragraph 4(c) of the Policy sets out the following examples:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel finds that Complainant has made a prima facie showing as to the examples set out in the Policy.
There is no reason to believe, from the WhoIs record or otherwise, that Respondent is or could be known by the domain name. It does not appear that Respondent is making a legitimate noncommercial or fair use of the domain name. It displays a somewhat generic parking page that presumably generates “click-through” revenue for the Registrar or Respondent or both.
Complainant does not appear to be using the domain name in connection with a bona fide offering of any kind. As noted above, the domain name is identical to Complainant’s mark and used with a site that displays another domain name, <casino.com>, and appears to generate “pay-per-click” revenue. Under these circumstances, the Panel concludes that this use meets Complainant’s obligation to make a prima facie showing .
The Panel concludes that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
A complainant must establish that the domain name was registered and is being used in bad faith. The Policy itself sets out four sets of circumstances, evidence of which may establish bad faith (see Policy, paragraph 4(b)(i)-(iv)):
(1) Registering the domain name primarily to sell it for more than documented out-of-pocket costs (see Policy, paragraph 4(b)(i)).
(2) Registering the domain name to prevent the owner of the trademark from reflecting the mark in a domain name, where there is a pattern of such conduct (see Policy, paragraph 4(b)(ii)).
(3) Registering the domain name primarily to disrupt the business of a competitor (see Policy, paragraph 4(b)(iii)).
(4) Using the domain name to intentionally attempt to attract, for commercial gain, Internet users to respondent’s web site or other on-line location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of respondent’s web site or location or a product or service on the respondent’s web site or location, (see Policy, paragraph 4(b)(iv)).
Complainant’s rights in the L’AUBERGE mark predate the registration of the disputed domain name. The Panel finds it is most probable – particularly in light of the proximity of Complainant’s Baton Rouge casino to Respondent’s location – that Respondent was aware of Complainant’s L’AUBERGE mark and registered the domain name with Complainant’s mark in mind; particularly in light of the choice of the “.casino” gTLD. Further, the domain name is not being used in connection with the meaning of the French term “l’auberge”. Rather, it appears that the domain name is being used to attract visitors by confusing them into believing that they are accessing a site affiliated with Complainant or its casinos for commercial gain through the use of the “pay-per-click” links.
Under these circumstances, including the adverse inferences drawn by Respondent’s failure to respond in accordance with paragraph 14 of the Rules, the Panel finds that Complainant has established that Respondent registered and is using the disputed domain name in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <lauberge.casino> be transferred to Complainant.
Debra J. Stanek
Date: October 5, 2015