DECISION

 

Fegral Investment Limited v. Evgeniya Tolstova

Claim Number: FA2404002092846

 

PARTIES

Complainant is Fegral Investment Limited ("Complainant"), represented by Kamal Tserakhau of REVERA Polska sp. z o.o., Poland. Respondent is Evgeniya Tolstova ("Respondent"), Russian Federation.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <lluckydreams.com>, <luckydreams3.com>, <luckydreams-ae.com> and <luckydreamss.com> (collectively "Domain Names"), registered with Realtime Register B.V. and Gransy, S.R.O.

 

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 April 12, 2024; Forum received payment on April 12, 2024.

 

On April 15, 2024, Realtime Register B.V. and Gransy, S.R.O. confirmed by e-mail to Forum that the <lluckydreams.com>, <luckydreams3.com>, <luckydreams-ae.com> and <luckydreamss.com> domain names are registered with Realtime Register B.V. and Gransy, S.R.O. and that Respondent is the current registrant of the names. Realtime Register B.V. and Gransy, S.R.O. have verified that Respondent is bound by the Realtime Register B.V. and Gransy, S.R.O. registration agreements 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 22, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 13, 2024 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@lluckydreams.com, postmaster@luckydreams3.com, postmaster@luckydreams-ae.com and postmaster@luckydreamss.com. Also on April 22, 2024, the 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.

 

Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.

 

On May 14, 2024, pursuant to Complainant's request 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.  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

Complainant has since 2021 offered online casino and gaming services through its website at the <luckydreams.com> domain name ("Complainant's Website"). Complainant claims rights to a figurative mark consisting of the word element LUCKY DREAMS (with the L replaced with an upside down 7 along with minor stylization) through its registration with the European Union Intellectual Property Office ("EUIPO") (e.g. Reg. No. 018,768,898, registered February 4, 2023). Respondent's Domain Names are each identical or confusingly similar to Complainant's LUCKY DREAMS mark as each of them incorporates the mark in whole, merely adding additional letters or numbers and the ".com" generic top-level domain ("gTLD").

 

Respondent lacks rights or legitimate interests in the Domain Names. Respondent is not licensed or authorized to use Complainant's LUCKY DREAMS mark and is not commonly known by the Domain Names. Respondent also does not use the Domain Names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent is attempting to profit from confusing users into believing that the resolving sites ("Respondent's Websites") belong to Complainant by reproducing Complainant's mark and copying copyrighted material and the overall design of the Complainant's Website and offering competing gaming services.

 

Respondent registered and uses the Domain Names in bad faith. Respondent attempts to pass off as Complainant while offering competing services. Respondent also had actual knowledge of Complainant's rights in the LUCKY DREAMS mark at the time of registration evidenced by the Respondent's Websites being direct copies of the Complainant's Website.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds trademark rights for the LUCKY DREAMS mark.  Each of the Domain Names is confusingly similar to Complainant's LUCKY DREAMS mark.  Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names in bad faith.

 

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.

 

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 Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) ("Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint").

 

Identical and/or Confusingly Similar

Complainant has rights in the LUCKY DREAMS mark under Policy ¶ 4(a)(i) through its registration of the mark with the EUIPO (e.g., Reg. No. 018,768,898, registered February 4, 2023). Registration with the EUIPO can sufficiently establish rights in a mark under Policy ¶ 4(a)(i).  See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a national trademark authority).

 

The Panel finds that each of the Domain Names is confusingly similar to the LUCKY DREAMS mark each of the Domain Names consist of minor misspellings of the LUCKY DREAMS mark as they wholly incorporate the LUCKY DREAMS mark and add either a letter, a number, or two letters ("-ae" which could also be a geographical term referring to the United Arab Emirates) and adding the gTLD ".com".  Misspelling a mark by adding, deleting, or exchanging a letter (and adding a top-level-domain) is not sufficient to avoid confusion between a domain name and a mark.  See Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (finding, "The domain name differs from the mark only in that the domain name substitutes the letter 'a' in the word 'steak' with the letter 'c' and adds the generic Top Level Domain ('gTLD') '.com.'  These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy."); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a TLD 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 Names. 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 Names 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 made out a prima facie case.

 

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the LUCKY DREAMS mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA 1621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where "Privacy Service" was listed as the registrant of the disputed domain name).  The WHOIS information of record lists "Evgeniya Tolstova" as the registrant of record. Coupled with Complainant's unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).

 

Each of the Domain Names is currently inactive but prior to the commencement of the proceeding resolved to one of Respondent's Websites which, through the reproduction of the LUCKY DREAMS mark and copyrighted material from Complainant's Website, passes itself off as an official website of the Complainant for the purpose of offering competing gaming services, in direct competition with Complainant's services. The use of a confusingly similar domain name to resolve to a webpage that directly offers unauthorized versions of a complainant's goods does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use; indeed it provides a false impression that the Respondent is affiliated with or authorized by Complainant. See BALENCIAGA SA v. ling lin, FA 1768542 (Forum Feb. 16, 2018) ("The disputed domain names incorporate Complainant's registered mark, and are being used for websites that prominently display Complainant's mark and logo, along with apparent images of Complainant's products, offering them for sale at discounted prices. The sites do not disclaim any connection with Complainant, and in fact seem to be designed to create an appearance of such a connection. Such use does not give rise to rights or legitimate interests."). See also Am. Int'l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant's mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).

 

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

 

Registration and Use in Bad Faith

The Panel finds on the balance of probabilities that, at the time of registration of the Domain Names (May 5 or September 6, 2023), Respondent had actual knowledge of Complainant's LUCKY DREAMS mark since each of the Respondent's Websites are almost exact copies of the Complainant's Website including reproducing copyrighted material and offering identical services. Furthermore, there is no obvious explanation, nor has one been provided, for an entity to register four domain names that wholly incorporate the LUCKY DREAMS mark and use each of them to redirect visitors to a website offering services in direct competition with the Complainant under the LUCKY DREAMS mark other than to take advantage of Complainant's reputation in the LUCKY DREAMS mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).

 

The Panel finds that Respondent registered and uses the Domain Names in bad faith to create confusion with Complainant's LUCKY DREAMS mark for commercial gain by using the confusingly similar Domain Names to resolve to websites that reproduce Complainant's mark and copyrighted material and purports to offer gaming services in direct competition with the Complainant's gaming services.  Using a confusingly similar domain name to trade upon the goodwill of a complainant can evince bad faith under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA 1612750 (Forum May 13, 2015) ("The Panel agrees that Respondent's use of the website to display products similar to Complainant's, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv)."). See also See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where "Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant's own website in order to confuse users into believing that Respondent is Complainant or is otherwise affiliated or associated with Complainant.").

 

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

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <lluckydreams.com>, <luckydreams3.com>, <luckydreams-ae.com> and <luckydreamss.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: May 15, 2024