LTWHP, LLC v. Domain Admin / Whoisprotection.cc
Claim Number: FA2204001991546
Complainant is LTWHP, LLC ("Complainant"), represented by Eric Perrott of Gerben Perrott, PLLC, District of Columbia, USA. Respondent is Domain Admin / Whoisprotection.cc ("Respondent"), Malaysia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lottoschoenennl.com>, registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 8, 2022; the Forum received payment on April 8, 2022.
On April 11, 2022, ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED confirmed by email to the Forum that the <lottoschoenennl.com> domain name is registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED and that Respondent is the current registrant of the name. ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED has verified that Respondent is bound by the ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED 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 April 12, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 2, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@lottoschoenennl.com. Also on April 12, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On May 10, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules, and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant and a predecessor in interest have produced and marketed footwear, apparel, and related goods under LOTTO and related marks since 1973. Complainant owns United States trademark registrations for LOTTO in standard character and stylized form; for a logo composed of two overlapping quadrilateral shapes; and for design marks that include both the logo and LOTTO in stylized form. Complainant's products are sold in physical and online retail stores and on Complainant's website at <lotto.it>.
Respondent registered the disputed domain name <lottoschoenennl.com> via a privacy registration service in March 2021. The domain name is being used for a Dutch-language website that mimics Complainant’s website, displaying Complainant’s LOTTO mark and logo and offering or purporting to offer shoes bearing Complainant’s logo for sale. Complainant states that it has received several complaints from customers stating that they attempted to purchase products from Respondent’s website but never received them, and alleges that Respondent is using the website to phish for users’ financial and personal information. Complainant states further that Respondent is not commonly known by the domain name, does not sell Complainant’s products, and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <lottoschoenennl.com> is confusingly similar to its LOTTO mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted 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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a), and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <lottoschoenennl.com> incorporates Complainant's registered LOTTO trademark, adding the generic term "schoenen" (Dutch for "shoes"), the geographic abbreviation "NL" (Netherlands), and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., LTWHP, LLC v. Jiali Zhang, FA 1985621 (Forum Mar. 31, 2022) (finding <scarpelotto.com> confusingly similar to LOTTO); LTWHP, LLC v. Marina Jager, FA 1978007 (Forum Jan. 25, 2022) (finding <lottosportsaustralia.com> confusingly similar to LOTTO); Brooks Sports, Inc. v. Kennedy Mcgee / Thorsten Schmidt / Laura Schroeder, FA 1932478 (Forum Apr. 2, 2021) (finding <brooksschoenennl.com> confusingly similar to BROOKS). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. It is being used for a website that passes off as Complainant and offers for sale what appear to be unauthorized or nonexistent products, possibly for the purpose of phishing for users' personal and financial information. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., LTWHP, LLC v. Jiali Zhang, supra (finding lack of rights or interests in similar circumstances); Fossil Group, Inc. v. Client Care / Web Commerce Communications Ltd., FA 1967582 (Forum Nov. 15, 2021) (same); Brooks Sports, Inc. v. Kennedy Mcgee / Thorsten Schmidt / Laura Schroeder, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
The disputed domain name incorporates Complainant's registered mark and a generic term for Complainant's products, and it was registered in the name of a privacy registration service. It is being used for a website that passes off as Complainant and offers for sale what appear to be unauthorized or nonexistent products, possibly for the purpose of phishing for users' personal and financial information. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., LTWHP, LLC v. Jiali Zhang, supra (finding bad faith registration and use in similar circumstances); Fossil Group, Inc. v. Client Care / Web Commerce Communications Ltd., supra (same); Brooks Sports, Inc. v. Kennedy Mcgee / Thorsten Schmidt / Laura Schroeder, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lottoschoenennl.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 11, 2022
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