Complainant is Tatts Group Limited of Woolloongabba, Australia, represented by Crowell & Moring LLP, Belgium.
Respondent is Fei Zhu of Shanghai, China.
The disputed domain name, <tattslotto.com>, is registered with Rebel.com Corp. (“Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (“Center”) on June 10, 2016. On June 10, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 15, 2016, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant, providing the contact details, and confirming other details of the registration. In response to a notification by the Center seeking clarification regarding the annexes to the Complaint, Complainant filed an amended Complaint on June 16, 2016.
The Center verified that the Complaint together with the amended 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 proceeding commenced on June 17, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 7, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 8, 2016.
The Center appointed Debra J. Stanek as the sole panelist in this matter on July 13, 2016. 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.
Complainant owns two Australian trademark registrations for the word mark TATTSLOTTO for lotteries, sweepstakes, and related goods and services. Both were registered in 1980.
The disputed domain name was registered in 2007. It currently resolves to a page that appears to contain “pay-per-click” links.
Complainant has owned and uses the mark TATTSLOTTO in connection with its lottery and gambling business since April 22, 1980. It owns two Australian trademark registrations for the mark, each of which were registered in 1980.
The disputed domain name <tattslotto.com> is identical to Complainant’s mark.
The WhoIs records indicate that, as of May 19, 2016, Respondent’s name is Fei Zhu and not a name related to the disputed domain name.
Respondent has no trademark rights in the disputed domain name and Respondent’s use and registration of the disputed domain name was not authorized by Complainant.
Lastly, Respondent’s use of the disputed domain name to redirect visitors to a parking site containing sponsored links, including links to competitors of Complainant does not constitute a legitimate or fair use under the Policy.
Respondent must have known of Complainant and its mark at the time he registered the disputed domain name. Complainant’s trademark is distinctive and well known, particularly in the file of online lottery and gambling and the disputed domain name is used with a site that includes lottery and gaming-related links. Further, a trademark or Internet search would have disclosed Complainant’s mark.
Respondent’s registration of <tattslotto.com> prevents Complainant, the holder of the TATTSLOTTO mark, from reflecting its mark in a corresponding domain name.
Visitors seeking information about Complainant and its TATTSLOTTO goods and services will be attracted to the disputed domain name. In turn, the disputed domain name redirects visitors to a website containing sponsored links, including links to Complainant’s competitors, such as “www.freelotto.com”. Thus, Respondent’s use is to intentionally attract, for commercial gain, Internet users, by creating a likelihood of confusion with Complainant's trademark as to the source, sponsorship, affiliation or endorsement of the website.
To the extent that Respondent is simply “passively holding” the disputed domain name, that passive holding is bad faith when it is difficult to imagine any plausible legitimate use. It cannot be ruled out that Respondent uses or will use the disputed domain name for fraudulent activity.
Respondent did not reply to Complainant’s contentions.
To prevail, a complainant must prove, as to a 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 circumstances that may evidence a respondent’s rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as bad faith registration and use, see Policy, paragraph 4(b).
Complainant continues to have this burden despite Respondent’s failure to respond to the Complaint, although the Panel may draw appropriate inferences from Respondent’s default. See Rules, paragraph 14(b).
Complainant has established its rights in the mark TATTSLOTTO by virtue of the evidence of its trademark registrations.
Complainant has also established that the disputed domain name is identical to its mark. The differences due to spacing and the addition of the generic Top-Level Domain are not relevant for purposes of this comparison.
The Panel finds that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights.
The Panel is of the view 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 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 establishing rights or legitimate interests shifts to respondent).
The Panel finds that Complainant has made a prima facie showing under paragraph 4(c) of the Policy. Respondent appears to be an individual named Fei Zhu; there is no evidence to suggest that Respondent is known by or has acquired any trademark rights in TATTSLOTTO. The screen shots provided by Complainant support its contention that Respondent is not making a legitimate noncommercial or a fair use of the disputed domain name. The page associated with the disputed domain name appears to be used to generate “pay-per-click” revenue. While such a use is not inherently objectionable, in the Panel’s view, that use “does not of itself confer rights or legitimate interests arising from a ‘bona fide offering of goods or services’ . . . or from ‘legitimate noncommercial or fair use’ of the domain name.” See WIPO Overview 2.0, paragraph 2.6.
The Panel finds that Complainant has established that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant must establish that the disputed domain name was registered and is being used in bad faith. The Policy sets out non-exclusive circumstances that may establish bad faith (see Policy, paragraph 4(b)(i)-(iv)):
(i) Registering the domain name primarily to sell it for more than documented out-of-pocket costs (see Policy, paragraph 4(b)(i)).
(ii) 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)).
(iii) Registering the domain name primarily to disrupt the business of a competitor (see Policy, paragraph 4(b)(iii)).
(iv) 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)).
The Panel finds that Complainant’s mark is well-known and predates registration of the disputed domain name. Given the identity of the disputed domain name and Complainant’s mark, it is most probable that Respondent was aware of Complainant and its mark and registered the disputed domain name with the mark in mind. Further, it appears that the disputed domain name is being used to attract visitors for commercial gain by confusing them into believing that they are accessing a site affiliated with Complainant but instead generating revenue through the pay-per-click links.
In light of these facts and the adverse inferences that arise from Respondent’s failure to respond to the Complaint, the Panel finds that Complainant has established that Respondent has 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 <tattslotto.com> be transferred to Complainant.
Debra J. Stanek
Sole Panelist
Date: July 18, 2016