The Complainant is Lotto Logic Limited of London, United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented by Gerben Law Firm, PLLC, United States of America ("United States").
The Respondent is Ricky Thys of Oost-Vlaanderen, Belgium.
The disputed domain name <lotteryusa.ws> (the "Disputed Domain Name") is registered with Wild West Domains, LLC (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 13, 2017. On January 16, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On January 17, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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 January 24, 2017. In accordance with the Rules, paragraph 5, the due date for Response was February 13, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 14, 2017.
The Center appointed John Swinson as the sole panelist in this matter on February 23, 2017. 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.
The Complainant is Lotto Logic Limited. The Complainant provides lottery information services and results for lotteries worldwide. According to the Complaint, this service has been provided from the Complainant's website at "www.lotteryusa.com" (the "Complainant's Website") since 1996.
The Complainant owns two registered trade marks for LOTTERY USA in the United States – one for the word mark (registration number 4854140) which was registered on November 17, 2015 and one for the device mark (registration number 4865605) which was registered on December 8, 2015 (together, the "Trade Mark"). The Complainant also owns the domain name <lotteryusa.com> which was registered on October 2, 1995, and corresponds with the Trade Mark.
The Respondent is Ricky Thys, an individual apparently located in Belgium and the registered owner of the Disputed Domain Name. The Complainant has named another individual, Adolph Barr of the United States, as a respondent to the Complaint (see section 5A below). Neither has provided a Response to the Complaint, so the Panel has little further information regarding Mr. Thys and Mr. Barr. For the purposes of this decision, a reference to the "Respondent" is a reference to Mr. Thys.
The Disputed Domain Name was registered on September 7, 2006. At the time that the Complaint was submitted, the website associated with the Disputed Domain Name had a header that read "Welcome to www.LotteryUSA.ws – Your source for lotteryUSA information and predictions from all over" and the page provided information on lottery predictions and results for lotteries in the United States and various other countries.
At the time of this decision, the website at the Disputed Domain Name states the following at the top of the page: "The Best LottoMan.ws Data Feeds Available". Otherwise, the website associated with the Disputed Domain Name appears to be inactive.
The Complainant makes the following contentions.
The Complainant names two individuals as respondents. The Respondent, Mr. Thys, is the registered owner of the Disputed Domain Name however it appears that Mr. Thys has passed away. The Complainant submits that Mr. Barr is the current owner and operator of the Disputed Domain Name and therefore names him as a respondent to the Complaint.
The Complainant has used the Trade Mark in respect of its lottery information services, including providing information on lottery results for lotteries in the United States via its website since 1996. The Disputed Domain Name is almost identical or confusingly similar to the Trade Mark.
The Respondent has no rights or legitimate interests in the Disputed Domain Name for the following reasons:
- The Respondent registered the Disputed Domain Name ten years after the Complainant began using the Trade Mark.
- The Respondent registered the Disputed Domain Name with the intention to trade off the Complainant's goodwill and reputation in the Trade Mark.
- The Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name.
- The Respondent registered the Disputed Domain Name to divert customers away from the Complainant's Website and towards the Disputed Domain Name.
- The Respondent is not commonly known by the Disputed Domain Name or the Trade Mark.
The Complainant also provided submissions in relation to Mr. Barr having no rights in respect to the Disputed Domain Name. As the Panel does not accept Mr. Barr as a respondent to the Complaint (see section 5A), the Complainant's submissions in relation to this have not been summarised here.
The Trade Mark has acquired distinctiveness through over 20 years of consistent and widespread use in commerce by the Complainant since 1996. The Complainant provides information on lottery results and predictions for lotteries in the United States. The Disputed Domain Name was registered ten years later and used for similar, if not identical services to those provided on the Complainant's Website.
The Respondent registered the Disputed Domain Name with the intent to divert customer traffic from the Complainant's Website to the Respondent's competing lottery prediction services and therefore disrupting the Complainant's business. The Respondent intended to cause consumer confusion with the Trade Mark as to the source, sponsorship, affiliation or endorsement of the Disputed Domain Name and the services provided through the Disputed Domain Name.
The Respondent did not reply to the Complainant's contentions.
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered or is being used in bad faith.
The onus of proving these elements remains on the Complainant even though the Respondent has not filed a Response.
The Complaint names two individuals as respondents. The Complainant claims that the Respondent passed away on January 31, 2014, citing evidence from a blog entry dated April 8, 2014, on a public forum called Lottery Post. The Panel does not consider the evidence in this regard to be conclusive and has not taken it into account in making its decision.
The Panel accepts the Complainant's submission that someone else other than the Respondent has been controlling the Disputed Domain Name since about 2015 based on observations from use of the Internet Archive's Wayback Machine at "www.archive.org", such as:
- changes to the website layout at the Disputed Domain Name in or around 2015;
- links on the website at the Disputed Domain Name to another website apparently owned and operated by Mr. Barr. at <www.fantasylotteriestwo.com> (the "Fantasy Website");
- references on the website at the Disputed Domain Name to Mr. Barr's email address;
- the extremely similar layout of the website at the Disputed Domain Name and the Fantasy Website; and
- a link on the website at the Disputed Domain Name to purchase an e-book written by Mr Barr.
However, given that Mr. Thys is listed as the registrant of the Disputed Domain Name, in these circumstances, the Panel finds that he is the correct Respondent as the holder of the domain name registration (see paragraph 1 of the Rules).
The Respondent's failure to file a Response does not automatically result in a decision in favour of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org, WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent's default.
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.
The Disputed Domain Name is identical to the Trade Mark. It incorporates the Trade Mark in its entirety and no further words are added.
The Complainant succeeds on the first element of the Policy.
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Panel finds that the Complainant has made out a prima facie case. This finding is based on the following:
- The Complainant has not authorised the Respondent to use the Trade Mark.
- There is no evidence that the Respondent has been commonly known by the Disputed Domain Name or the Trade Mark, or has registered or common law trademark rights in relation to the Trade Mark. The lottery prediction software that was made available at the Disputed Domain Name has a different name, "Lotsoftpro", which does not correspond with the Disputed Domain Name or the Trade Mark.
- The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. By providing the same services as the Complainant who began using the Trade Mark approximately ten years earlier, the Respondent is trading off the Complainant's reputation associated with the Trade Mark. The Disputed Domain Name currently lacks active content, and it is unclear whether the Respondent continues to provide the same services as the Complainant. Further, the provision of lottery-related information is a niche industry and the Panel considers it is likely that the Respondent was aware of the Trade Mark. In the circumstances, this is not a bona fide use of the Disputed Domain Name under the Policy.
- The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. Evidence of use of the Disputed Domain Name prior to its status at the time of this decision shows that the Respondent was using the Disputed Domain Name for deriving revenue.
The Respondent had the opportunity to demonstrate his rights or legitimate interests, but did not do so. In the absence of a Response from the Respondent, the prima facie case established by the Complainant has not been rebutted.
In light of the above, the Complainant succeeds on the second element of the Policy.
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and used the Disputed Domain Name in bad faith.
On October 2, 1995, the Complainant registered its domain name <lotteryusa.com>. On November 17, 2015, and December 8, 2015, the Complainant registered trademark registration number 4854140 and registration number 4865605, respectively, for LOTTERY USA with the registrations claiming a date of first use of November 1996.
On September 7, 2006, the Respondent registered the Disputed Domain Name, which is identical to the Trade Mark.
Given that the website at the Disputed Domain Name uses the Trade Mark in a manner that is not simply descriptive, and that the provision of lottery-related information services is a niche industry, it is highly likely that the Respondent had knowledge of the Complainant and the Trade Mark at the time he registered the Disputed Domain Name.
As stated above, the Respondent also used the website at the Disputed Domain Name to provide information on lottery predictions and results in the United States, services that are identical to those provided by the Complainant at the Complainant's Website. From time to time, lottery prediction software has been available for download at the website at the Disputed Domain Name, with paid lottery advertising. It appears to the Panel that the Respondent registered and is using the Disputed Domain Name to create consumer confusion and is trading off the Complainant's reputation. This constitutes registration and use of the Disputed Domain Name in bad faith for the purposes of paragraph 4(a)(iii) of the Policy (see, e.g., Cynthia Ann Crawford v. Julian S. Garcia, WIPO Case No. D2012-2454, and cases cited therein).
The Complainant succeeds on the third element of the Policy.
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 <lotteryusa.ws> be transferred to the Complainant.
John Swinson
Sole Panelist
Date: March 9, 2017