WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

WYNN Resorts Holdings, LLC v. Dajin Zhang

Case No. D2019-1713

1. The Parties

The Complainant is WYNN Resorts Holdings, LLC, of Nevada, United States of America (“USA”), represented by Mayer Brown, Hong Kong.

The Respondent is Dajin Zhang, Beijing, China.

2. The Domain Names and Registrar

The disputed domain names <0wynn.com>, <2wynn.com>, <3wynn.com>, <4wynn.com>, <5wynn.com>, <6wynn.com>, <7wynn.com>, <8wynn.com>, and <9wynn.com> (collectively referred to as the “Disputed Domain Names”) are registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 19, 2019. On July 19, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Names. On July 22, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 24, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 26, 2019.

The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 2, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 22, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default August 23, 2019.

The Center appointed Jonathan Agmon as the sole panelist in this matter on August 26, 2019. 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

The Complainant, Wynn Resorts Holdings, LLC, is a wholly-owned subsidiary of Wynn Resorts, Limited (“Wynn Resorts”). Wynn Resorts, together with the Complainant and Wynn Resorts’ other subsidiaries (the “Complainant Group”) are well-known designers, developers and operators of integrated resorts. The Complainant Group’s integrated resort business model integrates luxury hotel rooms, high-end retail, dining and entertainment options, meeting space and gaming, with quality customer service. Wynn Resorts has been listed on the Nasdaq Stock Exchange since 2002 and included as part of the NASDAQ-100 Index since 2004. The Complainant’s principal places of business are the USA, Macau S.A.R of China.

The Complainant is the owner of numerous trademarks worldwide for the mark WYNN, including, but not limited to the following:

- WYNN (Registration No. 5304536) registered in China on July 7, 2009;

- WYNN PALACE (Registration No. 10914773) registered in China on August 21, 2013;

- WYNN RESORTS (Registration No. 3353801) registered in China on August 21, 2004.

All of the Disputed Domain Names were registered on May 20, 2019 and all of them resolve to a Chinese website offering gambling services or a site that shows “in maintenance”.

5. Parties’ Contentions

A. Complainant

The Complainant’s contentions include the following:

The Complainant argues that the Disputed Domain Names are confusingly similar to the Complainant’s registered mark WYNN as the disputed domain names wholly incorporate the WYNN trademark and only differ from the WYNN trademark by the addition of the one numeral in front of the WYNN mark. The Complainant asserts that it has rights in the trademarks through numerous trademark registrations and that the Respondent’s use of its marks in the Disputed Domain Names and websites would mislead Internet users to believe that the Respondent is affiliated with the Complainant.

The Complainant also argues that the Respondent has no rights or legitimate interests in respect of the disputed domain names as it has not licensed or permitted the Respondent to use any of its trademarks or register the disputed domain names.

The Complainant further argues that the disputed domain names were registered and are being used in bad faith as the Respondent is using the Disputed Domain Names with the intention to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with the Complainant’s mark.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires the Complainant to show that the Disputed Domain Names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

The Complainant has provided evidence of its numerous trademarks’ registrations in numerous jurisdictions including China, where the Respondent seems to be based and registered the Disputed Domain Names.

A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The Disputed Domain Names <0wynn.com>, <2wynn.com>, <3wynn.com>, <4wynn.com>, <5wynn.com>, <6wynn.com>, <7wynn.com>, <8wynn.com>, and <9wynn.com> integrate the Complainant’s WYNN trademark in its entirety (see Wal-Mart Stores, Inc. v. Kuchora, Kal, WIPO Case No. D2006-0033; Hoffmann-La Roche Inc. v. Andrew Miller, WIPO Case No. D2008-1345).

The insertion of numeral “0”, “2”, “3”, “4”, “5”, “6”, “7”, “8” and “9” into the Disputed Domain Names does not avoid a finding of confusing similarity between the Disputed Domain Names from the Complainant’s WYNN mark (see Compagnie Générale des Etablissements Michelin v. PrivacyDotLink Customer 1197652 / Alex Hvorost, WIPO Case No. D2016-1923; AB Electrolux v. ID Shield Service, Domain ID Shield Service CO., Limited / Maksim, zanussi-shop.com, WIPO Case No. D2015-2027; Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; and Volkswagen AG v. Hui Min Wang, Wang Hui Min, 王慧敏, WIPO Case No. D2017-0860).

In the particular circumstances of the present case, the Panel is of the view that the Disputed Domain Names are identical or confusingly similar to the Complainant’s trademark in which the Complainant has rights.

B. Rights or Legitimate Interests

Once the complainant establishes a prima facie case that the respondent lacks rights or legitimate interests in a disputed domain name, the burden of production shifts to the respondent to show that it has rights or legitimate interests in respect to the disputed domain name. See WIPO Overview 3.0, section 2.1.

In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the Disputed Domain Names and the Respondent has failed to assert any such rights or legitimate interests.

The Complainant has provided evidence that it owns numerous trademark registrations in many jurisdictions long before the Disputed Domain Names were registered and that it has not licensed or otherwise permitted the Respondent to use the Complainant’s trademarks. See LEGO Juris A/S v. DomainPark Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master, WIPO Case No. D2010-0138.

The Complainant has also provided evidence that the Respondent is not commonly known by the disputed domain names. Although the WhoIs records are protected by a privacy shield, the Registrar information shows that the disputed domain names are registered under the Respondent “Dajin Zhang” which bear no resemblance to the Disputed Domain Names in any way (see Sportswear Company S.P.A. v. Tang Hong, WIPO Case No. D2014-1875; WIPO Overview 3.0, section 2.3).

In the present case, the Respondent did not submit a Response to the Complaint and did not provide any explanation or evidence to show rights or legitimate interests in the Disputed Domain Names sufficient to rebut the Complainant’s prima facie case.

Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Names.

C. Registered and Used in Bad Faith

The Complainant must also show that the Respondent registered and is using the Disputed Domain Names in bad faith (see Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy.

The Complainant has submitted evidence which shows that the Respondent registered the Disputed Domain Names long after the Complainant’s trademark registrations and uses the Complainant’s trademarks on his websites. According to the evidence filed by the Complainant, the Complainant owned registrations for its WYNN trademarks in China since 2009 and these registrations were active at the time the Respondent registered the disputed domain names in 2019. The Complainant has also shown evidence that the Complainant enjoys considerable reputation and goodwill worldwide and has significant online presence. Therefore, the Panel draws the inference that the Respondent knew or should have known about the Complainant’s trademarks. Further, it is the Complainant’s evidence that the WYNN mark has no inherent meaning other than in relation to the Complainant Group and its business. The Panel therefore finds it inconceivable that the Respondent could have registered the Disputed Domain Names without knowledge of the Complainant’s trademarks and intention of benefiting from confusion with such trademarks. (See Leite’s Culinaria, Inc. v. Gary Cieara, WIPO Case No. D2014-0041; WIPO Overview 3.0, section 3.2.2)

The Complainant also provided evidence that the Respondent is passing off himself as the Complainant. All of the Respondent’s websites resolve to an online interactive casino website and identical interface. The Respondent’s websites use the Complainant’s WYNN marks and images of landmark buildings that belong to the Complainant. According to the evidence submitted by the Complainant, the Respondents’ websites included a brief introduction of “Wynn Macau Casino”, which states, inter alia, the following in Chinese:

a. “Wynn Macau Casino” is located in the Macau Peninsula;

b. “Wynn Macau Casino” is owned and operated by “Wynn Macau Limited”;

c. “Wynn Macau Casino” is named after the founder of Wynn Resorts Limited, Mr. Stephen Alan Wynn;

d. The Respondent’s websites were founded in April 2010 and registered in the Philippines;

e. The Respondent’s websites obtained E-Casino and Sports Betting Licenses from the First Cagayan Leisure and Resort Corporation; and

f. The Respondent’s websites operate 24 hours a day and seven days a week.

The Complainant asserts that the information above is untrue and created by the Respondent to give off a false impression that the Disputed Domain Names were registered by or are affiliated with the Complainant when the Complainant neither registered the Disputed Domain Names nor is affiliated with the Respondent. Such use of the Disputed Domain Names is clear evidence of registration and use of the Disputed Domain Names in bad faith.

By engaging in such acts, the Respondent is free riding on the Complainant’s reputation and goodwill to mislead unsuspecting Internet users to the Disputed Domain Names’ websites and creating a false impression that the Respondent is affiliated with the Complainant when it is not the case. There is also no information on the Respondent’s websites clarifying the Respondent’s relationship (or lack thereof) to the Complainant (see Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903).

The Complainant also provided evidence that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant’s trademarks. The Respondent is offering online gambling services on websites that prominently display the Complainant’s marks. Such use demonstrates intent on the Respondent’s part to specifically target Internet users who may have intended to visit the Complainant’s websites but was instead misled to the Respondent’s websites. Internet users seeking to visit the Complainant’s websites would very likely mistakenly believe that the Respondent is either connected to or associated with the Complainant. However, no such connection exists, and there is nothing on the Respondent’s websites that would clarify that the Respondent is not affiliated with or endorsed by the Complainant.

Taking these into consideration, the Panel finds that under the particular circumstances of this case, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant’s trademarks under paragraph 4(b)(iv) of the Policy.

In addition to the above, the Panel also notes that the Respondent was using a privacy shield to hide his identity which is further indication of bad faith behavior.

Based on the evidence presented to the Panel, including the registration of the Disputed Domain Names after the registration of the Complainant’s trademarks, the distinctiveness of the Complainant’s mark, the confusing similarity between the disputed domain names and the Complainant’s trademarks, the Respondent’s use of the Disputed Domain Names, the failure of the Respondent to submit a response and the concealment of the Respondent’s identity, the Panel concludes that the Disputed Domain Names were registered and are being used in bad faith.

Accordingly, having regard to the circumstances of this particular case, the Panel finds that the Complainant has met its burden under paragraph 4(a)(iii) of the Policy.

7. Decision

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 Names <0wynn.com>, <2wynn.com>, <3wynn.com>, <4wynn.com>, <5wynn.com>, <6wynn.com>, <7wynn.com>, <8wynn.com>, and <9wynn.com> be transferred to the Complainant.

Jonathan Agmon
Sole Panelist
Date: September 10, 2019