National Arbitration Forum
DECISION
Claim Number: FA1004001318449
PARTIES
Complainant is Texas
Lottery Commission (“Complainant”),
represented by Dwayne K.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <txlotto.net>,
registered with eNom, Inc.
PANEL
The undersigned certifies that he or she has
acted independently and impartially and to the best of his or her knowledge has
no known conflict in serving as Panelist in this proceeding.
Mark McCormick as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the
National Arbitration Forum electronically on April
9, 2010.
On April 12,
2010, eNom, Inc. confirmed by
e-mail to the National Arbitration Forum that the <txlotto.net> domain
name is registered with eNom, Inc. and
that the Respondent is the current registrant of the name. eNom, Inc.
has verified that Respondent is bound by the eNom,
Inc. registration agreement and has thereby agreed to resolve
domain-name disputes brought by third parties in accordance with ICANN’s
Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 13,
2010, the Forum served the Complaint and all Annexes, including a
Written Notice of the Complaint, setting a deadline of May 3, 2010 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@txlotto.net. Also on April 13, 2010, 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.
A timely Response was received on May 3, 2010 but was not in compliance with Rule
5(a) because the annexes were not separated from the response.
Complainant submitted an Additional Submission
on May 6, 2010 that was deemed timely and in compliance with Supplemental Rule
7.
On May 14, 2010,
pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Mark McCormick as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be
transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant.
The domain name <txlotto.net> is
confusingly similar to Complainant’s registered service marks LOTTO
B. Respondent.
Respondent did not know of Complainant’s registered service marks or use of those marks at the time it registered the domain name <txlotto.net>. The terms in the domain name are generic, and their registration and use by Respondent was not in bad faith. Respondent has shown its good faith by its offer to transfer the domain name to Complainant.
C. Additional Submissions
Complainant.
Respondent has in bad faith registered and
used the domain name in order to profit from its similarity to Complainant’s
LOTTO
FINDINGS
Complainant registered its LOTTO
DISCUSSION
Paragraph 15(a) of the
Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Two preliminary issues are presented. One is whether Respondent’s Response should
be considered. The annexes to the
Response were not separated from the Response as required by ICANN Rule
5(a). This is a technical breach but is
not serious enough to affect the Panel’s decision of the case on its
merits. See J. W. Spear & Sons PLC v. Fun League
Mgmt., FA180628 (Nat. Arb.
Forum October 17, 2003). The other
preliminary issue is whether the Panel should simply order the disputed domain
name transferred based on Respondent’s offer to allow that to be done. Complainant has not consented to transfer
without a decision on the merits. The
Panel has concluded the Complainant is entitled to have findings made on the
merits of the Complaint. See Graebal Van Lines, Inc.
v.
Paragraph 4(a) of the Policy requires that
the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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’s registration and years of use
in interstate commerce of its TEXAS LOTTO mark have sufficiently established
its rights in the mark pursuant to Policy ¶4(a)(i). See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007). Moreover, the <txlotto.net>
domain name is confusingly similar to Complainant’s mark. Mere abbreviation of
Rights
or Legitimate Interests
Because Complainant made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, the burden shifted to Respondent to show it does have rights or legitimate interests in the name. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). No evidence exists that Respondent is commonly known by the disputed domain name or is in any way affiliated with Complainant or authorized by Complainant to use the name. Respondent plainly lacks rights or legitimate interests in the domain name. See Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000). Moreover, Respondent’s use of the disputed domain name to obtain “click-through” revenue is not legitimate or fair use of the domain name. See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007).
Complainant
has established that Respondent lacks rights and legitimate interests in the disputed
domain name within the meaning of Policy ¶4(a)(ii).
Registration
and Use in Bad Faith
Respondent registered and is using the
disputed domain name to capitalize on its similarity to Complainant’s mark to
obtain revenue by redirecting Internet users to Respondent’s website for the
purpose of inducing them to click on one of the third-party links. This is bad faith registration and use within
the meaning of Policy ¶4(b)(iv). See Allianz
of Am. Corp. v. Bond, FA
680624 (Nat. Arb. Forum June 2, 2006).
Respondent’s bad faith is also shown by its willingness to sell the
disputed domain name. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003).
Complainant has demonstrated that Respondent registered and
is using the disputed domain name in bad faith within the meaning of 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 <txlotto.net> domain name be TRANSFERRED
from Respondent to Complainant.
Mark McCormick, Panelist
Dated: May 26, 2010
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