DECISION
Texas
Lottery Commission v. Kendell Lang
Claim
Number: FA0212000137707
PARTIES
Complainant is Texas Lottery Commission, Austin, TX (“Complainant”) represented by Dwayne K. Goetzel. Respondent is Kendell Lang, Del Mar, CA (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <texaslottery.org>,
registered with BULKREGISTER.COM, INC.
PANEL
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.
Hon.
Ralph Yachnin as Panelist.
PROCEDURAL
HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on December 23, 2002; the Forum received a hard copy of the Complaint
on December 23, 2002.
On
January 16, 2003, BULKREGISTER.COM, INC. confirmed by e-mail to the Forum that
the domain name <texaslottery.org>
is registered with BULKREGISTER.COM, INC. and that Respondent is the current
registrant of the name. BULKREGISTER.COM, INC. has verified that Respondent is
bound by the BULKREGISTER.COM, 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
January 16, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of February 5, 2003 by which Respondent could file a Response to the
Complaint, was transmitted to Respondent via e-mail, post and fax, to all
entities and persons listed on Respondent's registration as technical,
administrative and billing contacts, and to postmaster@texaslottery.org by
e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
February 12, 2002, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin 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."
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.
RELIEF
SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES'
CONTENTIONS
A. Complainant makes the following assertions:
1. Respondent’s <texaslottery.org> domain name is identical to Complainant’s
TEXAS LOTTERY mark.
2. Respondent does not have any rights or
legitimate interests in the <texaslottery.org>
domain name.
3. Respondent registered and used the <texaslottery.org> domain name in
bad faith.
B. Respondent failed to submit a Response in
this proceeding.
FINDINGS
Complainant holds a
trademark registration with the United States Patent and Trademark Office
(“USPTO”) for TEXAS LOTTERY (Reg. No. 1,757,208, registered March 9, 1993).
Complainant uses the mark in connection with games of chance and lottery
services provided by Complainant. Complainant also operates a website at <txlottery.org>.
Respondent registered
the <texaslottery.org> domain
name on April 30, 1998. Respondent has yet to create a website for the disputed
domain name.
DISCUSSION
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."
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(e), 14(a) and 15(a) of the Rules and
draw such inferences it considers appropriate pursuant to paragraph 14(b) of
the Rules.
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.
Identical and/or Confusingly Similar
Complainant has
established rights in the TEXAS LOTTERY mark through registration with the
USPTO and continuous use of the mark in commerce since at least 1992.
Respondent’s <texaslottery.org> domain name is
plainly identical to Complainant’s mark because the disputed domain name simply
removes the space between the words and adds the generic top-level domain
(gTLD) “.org” after texaslottery. See
Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7,
2002) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces
are impermissible in domain names and a generic top-level domain such as ‘.com’
or ‘.net’ is required in domain names”); see
also Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000)
(finding that the domain name <wembleystadium.net> is identical to the
WEMBLEY STADIUM mark).
Accordingly, the Panel
finds that Complainant has established Policy ¶ 4(a)(i).
Rights or Legitimate Interests
Respondent has not
submitted a Response in this proceeding. Thus, the Panel is permitted to accept
all reasonable allegations and inferences in the Complaint as true. See Vertical Solutions Mgmt., Inc. v.
webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding
that Respondent’s failure to respond allows all reasonable inferences of fact
in the allegations of Complainant to be deemed true); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec.
21, 2000) (finding that failing to respond allows a presumption that
Complainant’s allegations are true unless clearly contradicted by the
evidence).
Furthermore, based on
Respondent’s failure to respond, the Panel may presume that Respondent lacks
any rights or legitimate interests in the disputed domain name. See Geocities v. Geociites.com,
D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or
legitimate interests in the domain name because the Respondent never submitted
a response nor provided the Panel with evidence to suggest otherwise); see also Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response,
Respondent has failed to invoke any circumstance which could demonstrate any
rights or legitimate interests in the domain name).
The Respondent has not
submitted any evidence that it is using the domain name in connection with a
bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or for a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero,
D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests
where Respondent failed to submit a Response to the Complaint and had made no
use of the domain name in question); see
also BMW AG v. Loophole, D2000-1156 (WIPO Oct. 26, 2000) (finding no rights
in the domain name where Respondent claimed to be using the domain name for a
non-commercial purpose but had made no actual use of the domain name).
Respondent has not
come forward with any proof and there is no evidence to establish that
Respondent is commonly known as TEXASLOTTERY or <texaslottery.org>. Therefore, Respondent has failed to
establish that it has rights or legitimate interests in the disputed domain
name pursuant to Policy ¶ 4(c)(ii). See
Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5,
2001) (finding no rights or legitimate interests because Respondent is not
commonly known by the disputed domain name or using the domain name in
connection with a legitimate or fair use); see
also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar.
14, 2000) (finding no rights or legitimate interest where Respondent was not
commonly known by the mark and never applied for a license or permission from
Complainant to use the trademarked name).
Accordingly, the Panel
finds that Complainant has established Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Respondent has
registered numerous domain names that incorporate the trademarks of third
parties, e.g., <azlotto.com>, <floridalottery.net>,
<floridalottery.org>, etc. In light of this pattern and the fact that
Respondent has made no use of <texaslottery.org>,
the Panel infers that Respondent registered the disputed domain name to sell
its registration. Registration of a domain name that infringes on another’s
mark primarily for the purpose of selling, renting or transferring it is
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i). See Cruzeiro Licenciamentos Ltda v. Sallen,
D2000-0715 (WIPO Sept. 6, 2000) (finding that mere passive holding of a domain
name can qualify as bad faith if the domain name owner’s conduct creates the
impression that the name is for sale); see
also Globosat Programadora Ltda v. Artmidia Comunicacao Visual Criacao E Arte
Ltda, D2000-0605 (WIPO Sept. 13, 2000) (finding that “the fact that almost
all the domain names registered by the Respondent or the Administrative Contact
for these domains are inactive and redirected to a site apparently dedicated to
the commerce of domain names, force this Panelist to consider that… Respondent
has registered the domain names primarily
for the purpose of selling, renting or otherwise transferring the domain
names registration to the Complainant or to a Complainant's competitor for
valuable consideration").
Moreover, Respondent’s
pattern of registering the trademarks of third parties is independent evidence
of registration and use in bad faith pursuant to Policy ¶ 4(b)(ii). See BIC Deutschland GmbH & Co. KG v.
Tweed, D2000-0418 (WIPO June 20, 2000) (finding that the Respondent
violated ¶ 4(b)(ii), as revealed by the number of other domain name
registrations incorporating others’ trademarks and the fact that the domain
names in question do not link to any on-line presence or website); see also Armstrong Holdings, Inc. v. JAZ
Assoc., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the
Respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names that
infringe upon others’ famous and registered trademarks).
Accordingly, the Panel
finds that Complainant has established Policy ¶ 4(a)(iii).
DECISION
Having established all
three elements required under ICANN Policy, the Panel concludes that relief
shall be GRANTED.
Accordingly, it is
Ordered that the <texaslottery.org>
domain name be TRANSFERRED from
Respondent to Complainant.
Hon.
Ralph Yachnin, Panelist
Justice,
Supreme Court NY (Ret.)
Dated: February 14, 2002
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