For the Wynn.ai: UDRP quotes obscure Olde English letter

The Old English rune Wynn (ᚹ) represents the “W” sound and means joy or bliss. It was part of the Anglo-Saxon runic alphabet (futhorc), derived from the earlier Elder Futhark runes.

Wynn is also the mark representing Wynn Resorts, that filed a UDRP to get the domain Wynn.ai.

The Respondent claimed that its use of the domain represents that Olde English runic letter and is unrelated to the Complainant’s brand. Registered in 2019, Wynn.ai has not been developed, despite the Respondent’s intentions since 2015 to develop a product called WYNN in the field of natural language processing.

The panelist’s doubts were shared:

The Panel has concerns with the extent of the Respondent’s evidence of its business. The Domain Name has been held by the Respondent for over 5 years and there is no evidence of a website, and the sum total of documentary evidence of use of the Domain Name is a single e-mail, two pitch documents that could have been created recently and a set of what are said to be development projects under the wynn-name. The Respondent’s explanation for the adoption of the term “Wynn”, being a very obscure reference to an old English rune is confusing, merely stating it complemented the company name “armony”, however it is not implausible that the old English word for “joy” does complement the Respondent’s company name, which could be a reference to the English term “harmony”. However, the limited evidence may be explained by the fact that Respondent is in the course of establishing the business, potentially as a side product for one of the many activities that he pursues, rather than actively trading.

Somehow, the Forum panelist accepted the Respondent’s claims and ordered the domain Wynn.ai to remain with the Respondent.

Wynn Resorts Holdings, LLC v. Alexis Delamare

Claim Number: FA2502002139637

PARTIES

Complainant is Wynn Resorts Holdings, LLC (“Complainant”), represented by Peter H. Ajemian of Brownstein Hyatt Farber Schreck, Nevada, USA. Respondent is Alexis Delamare (“Respondent”), France.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is wynn.ai (“Domain Name”), registered with Gandi SAS.

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

Nicholas J.T. Smith as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 11, 2025; Forum received payment on February 11, 2025.

On February 12, 2025, Gandi SAS confirmed by e-mail to Forum that the wynn.ai domain name is registered with Gandi SAS and that Respondent is the current registrant of the name. Gandi SAS has verified that Respondent is bound by the Gandi SAS registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On February 14, 2025, Forum served the Complaint and all Annexes, including a French and English Written Notice of the Complaint, setting a deadline of March 10, 2025 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@wynn.ai. Also on February 14, 2025, the French and English Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.

A timely Response was received and determined to be complete on March 10, 2025.

On March 11, 2025, pursuant to the Parties’ requests to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith as Panelist.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that 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” through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING

The language of the Registration Agreement in this case is French. The Complaint has been provided in English and Complainant has requested that the language of the proceeding be English.

It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would demonstrate familiarity with the English language, filing of a trademark registration with an entity which shows an understanding of the English language, and any evidence (or lack thereof) exhibiting Respondent’s understanding of the language requested by Complainant. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the French language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”) and Zappos.com, Inc. v. Zufu aka Huahaotrade, Case No. D2008-1191 (WIPO October 15, 2008) (holding that proceedings could be conducted in English even though the registration agreement was in Chinese where “the disputed domain resolves to a website [that] is exclusively in English, from which can be reasonably presumed that the Respondent has the ability to communicate in English in order to conduct his business over the website in English”).

Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. The Respondent has chosen to file its Response in English, thus accepting that the proceeding should continue in English (the language of the Complaint and Response). After considering the circumstances of the present case, the Panel decides that the proceeding should be in English

PARTIES’ CONTENTIONS

A. Complainant

Complainant, Wynn Resorts Holdings, LLC, is a subsidiary of Wynn Resorts, Limited, which operates a series of luxury resorts and casinos in Las Vegas, Nevada and Macau, China. Complainant has rights in the WYNN mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. 4,998,454, registered July 12, 2016). Respondent’s wynn.ai domain name is confusingly similar to Complainant’s WYNN mark, only differing by the addition of the geographic term “las vegas” and the “.ai” generic top-level domain (“gTLD”).

Respondent has no legitimate interests in the wynn.ai domain name. Respondent is not commonly known by the Domain Name and Complainant has not authorized or licensed Respondent any rights in the WYNN mark. Additionally, Respondent does not use the Domain Name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the Domain Name is inactive.

Respondent registered and uses the wynn.ai domain name in bad faith as Respondent fails to make an active use of the Domain Name and hopes to cause confusion for Complainant’s actual or potential customers through the use of the WYNN mark in the Domain Name. Respondent had actual knowledge of Complainant’s rights in the WYNN mark due to the longstanding use and fame of the mark in commerce.

B. Respondent

Complainant’s WYNN mark arises from the Complainant’s founder Steve Wynn. Thus, the Domain Name is not necessarily identical to the trademark without the reference to “Resorts” or “Las Vegas”. There are a number of potential uses for the term “Wynn” being a letter in the old English alphabet. Indeed, Respondent’s use of the Domain Name arises out of the term “Wynn” being a letter in the old English alphabet.

Respondent is a French technology entrepreneur. In 2015 he founded a company called Armory SAS that sought to develop a product called WYNN in the field of natural language processing. The decision to adopt the WYNN mark for his natural language processing artificial intelligence (AI) product arose out of the term being an old English letter or rune meaning “bliss” or “joy” that complemented Respondent’s company name. The Domain Name or WYNN mark has been used for e-mails, pitch decks and development servers for the Wynn product.

Respondent was not aware of the Complainant at the time of registering the Domain Name and there is no evidence that he is seeking to sell the Domain Name, rent it or transfer it for profit. The Respondent has never engaged in a pattern of conduct of bad faith registration and there is no evidence of any other requirements of registration and use in bad faith.

FINDINGS

Complainant, having failed to establish that Respondent lacks rights or legitimate interests in the Domain Name, has not established all required elements of its claim, and thus its complaint must be denied.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

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 rights in the WYNN mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g. Reg. 4,998,454, registered Jul. 12, 2016). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).

The Panel finds that the wynn.ai domain name is identical to Complainant’s WYNN mark because it wholly incorporates the WYNNA mark and also adds the “.ai” gTLD. The addition of a gTLD to a wholly incorporated mark is generally insufficient to create a distinction between a complainant’s mark and a disputed domain name under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).

The Panel holds that Complainant has not made out such a prima facie case. Rather, there are factual and legal issues that are unresolved by the evidence presented and the Panel is of the opinion that this case is not one that is well suited for resolution under the Policy. See, e.g., AirMax Construçoes Aeronáuticas LTDA v. Richard Rofe / seamaxamerica.com, FA 1763605 (Forum Feb. 9, 2018) (finding serious issues of fact and law that “can be resolved only by the use of forensic powers which a Panel under the UDRP does not have, such as deposition evidence by cross examination, discovery….”).

The Domain Name was registered in 2019. Respondent states that the purpose behind the registration of the Domain Name was for a natural language processing business the Respondent hoped to set up under the Wynn name, Wynn being an old English rune meaning “joy” or “bliss”. The Respondent provides evidence of his registration of the company name Armony SAS in 2015. The Domain Name does not resolve to a website however Respondent provides evidence that for a short period the website simply contained the message “Bienvenue sur wynn.ai Armony SAS © 2020-2021”. The Respondent also provides evidence of the use of the Domain Name for an e-mail in 2020 in which the Respondent sent a pitch deck for its Wynn natural language processing business to an investor, and also encloses copies of the pitch deck and a development roadmap dated January 2020. Finally, the Response encloses evidence of a file folder with a list of development projects for Wynn with timestamps, mostly from 2021-2023, such as wynn-api and wynn-server.

The Panel also notes that there is no other evidence of any conduct engaged in by the Respondent that suggests the use of the Domain Name is anything other than for a bona fide offering of services, such as phishing e-mails, misleading statements, a pattern of conduct of abusive registrations or the like.

The Panel has concerns with the extent of the Respondent’s evidence of its business. The Domain Name has been held by the Respondent for over 5 years and there is no evidence of a website, and the sum total of documentary evidence of use of the Domain Name is a single e-mail, two pitch documents that could have been created recently and a set of what are said to be development projects under the wynn-name. The Respondent’s explanation for the adoption of the term “Wynn”, being a very obscure reference to an old English rune is confusing, merely stating it complemented the company name “armony”, however it is not implausible that the old English word for “joy” does complement the Respondent’s company name, which could be a reference to the English term “harmony”. However, the limited evidence may be explained by the fact that Respondent is in the course of establishing the business, potentially as a side product for one of the many activities that he pursues, rather than actively trading.

A panel has to be positively satisfied that a respondent lacks rights and legitimate interests under this element of the Policy. While acknowledging the limitations of the Respondent’s evidence, in the Panel’s evaluative judgement of the evidence before it, the Panel is not satisfied that the Respondent lacks rights and legitimate interests. The Panel considers that any questions of fact regarding the nature and legitimacy of the Respondent’s business are better resolved in a venue that has explicit forensic powers which a Panel under the Policy does not have. On its face the Respondent has provided an explanation for its selection of the Domain Name and evidence of use, prior to the commencement of this proceeding, of the Domain Name or the WYNN mark, for an e-mail address, pitch decks and development projects, which taken together would amount to demonstrable preparations to use the Domain Name and the WYNN mark in connection with a bona fide offering of goods or services, namely a natural-language processing application.

Panels have recognized that “[t]he Policy’s purpose is to combat abusive domain name registrations and not to provide a prescriptive code for resolving more complex trade mark disputes”. Luvilon Industries NV v. Top Serve Tennis Pty Ltd., DAU2005-0004 (WIPO Sept. 6, 2005). See also Courtney Love v. Brooke Barnett, FA 944826 (Forum May 14, 2007) (“the purpose of the Policy is not to resolve disputes between parties who might each have legitimate rights in a domain name. The purpose of the Policy is to protect trademark owners from cybersquatters, that is, from people who abuse the domain name system in a very specific way, which specific way is outlined in Paragraph 4(a) of the Policy.”). The present proceeding is summary in nature and hence the limited evidence that Respondent has engaged in demonstrable preparations to operate a business known as WYNN that does not compete with the Complainant (including its preparation of pitch decks and use as an e-mail address prior to any notice of the present dispute) is a sufficient basis to find that the Complainant has failed to demonstrate that Respondent lacks rights or legitimate interests in the Domain Name. The Uniform Domain Name Dispute Resolution Policy is designed to deal with clear cases of cybersquatting, see IAFT International LLC v. MANAGING DIRECTOR / EUTOPIAN HOLDINGS, FA 1577032 (Forum Oct. 9, 2014) (“The objectives of the Policy are limited — designed to obviate the need for time-consuming and costly litigation in relatively clear cases of cyber-squatting — and not intended to thwart every sort of questionable business practice imaginable.”).

The Panel notes that in the event that further information arises that suggest that the motives of the Respondent in registering the Domain Name was anything other than the intention to use in respect of its Wynn natural language processing business, there may be grounds to consider a refiled complaint, subject to the applicable criteria.

Registration and Use in Bad Faith

In light of the Panel’s dispositive finding on the issue of rights or legitimate interests, the Panel declines to address the question of registration and use in bad faith.

DECISION

Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

Accordingly, it is Ordered that the wynn.ai domain name REMAIN WITH Respondent.

Nicholas J.T. Smith, Panelist

Dated: March 12, 2025

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