LTWHP, LLC v. Ulrich Eggers
Claim Number: FA2303002035974
Complainant is LTWHP, LLC (“Complainant”), represented by Eric Perrott of Gerben Perrott, PLLC, Washington D.C., USA. Respondent is Ulrich Eggers (“Respondent”), Germany.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tiendalottocolombia.com>, registered with MAT BAO CORPORATION.
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on March 15, 2023. Forum received payment on March 15, 2023.
On March 17, 2023, MAT BAO CORPORATION confirmed by e-mail to Forum that the <tiendalottocolombia.com> domain name is registered with MAT BAO CORPORATION and that Respondent is the current registrant of the name. MAT BAO CORPORATION has verified that Respondent is bound by the MAT BAO CORPORATION registration agreement, which is in both English and Vietnamese, 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 March 17, 2023, Forum served the Complaint and all Annexes, including an English and Vietnamese Written Notice of the Complaint, setting a deadline of April 6, 2023 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@tiendalottocolombia.com. Also on March 17, 2023, the English and Vietnamese 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 April 12, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
As noted, the MAT BAO CORPORATION registration agreement is in English and Vietnamese. Insofar as the language of the registration agreement is in Vietnamese, pursuant to Rule 11(a), the language of the proceeding in relation to the <tiendalottocolombia.com> domain name shall be Vietnamese unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant requests that the proceeding be conducted in English. Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, the Panel determines that the language requirement has been satisfied through the English and Vietnamese language Written Notice of the Complaint and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant, LTWHP, LLC, is a retailer of clothing, accessories, footwear, and sporting goods sold in physical and online retail stores and on its website
“https://www.lotto.it/us/”. Complainant has rights in the LOTTO mark through numerous registrations with the United States Patent and Trademark Office (“USPTO”). Respondent’s <tiendalottocolombia.com> domain name is confusingly similar to the LOTTO mark.
Respondent lacks rights or legitimate interests in the <tiendalottocolombia.com> domain name since Respondent is not licensed or authorized to use Complainant’s LOTTO mark and is not commonly known by the domain name. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent deceitfully attracts Internet traffic away from the LOTTO website to a webpage that cannot load.
Respondent registered and uses the <tiendalottocolombia.com> domain name in bad faith by capitalizing on the goodwill associated with the LOTTO mark and disrupting Complainant’s business. Respondent intends to cause confusion as to the source or affiliation of the domain name and divert Internet users. Respondent is also not actively using the domain name and there is no use that could be in good faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 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”).
Complainant has shown that it has rights in the LOTTO mark through numerous registrations with the USPTO (e.g., Reg. No. 1,379,243, registered on January 21, 1986). Complainant also has rights in a design mark without words, USPTO Reg. No. 1,378,169, registered on January 14, 1986. The Panel finds Respondent’s <tiendalottocolombia.com> domain name to be confusingly similar to Complainant’s LOTTO mark as it includes the entire mark, merely adding the descriptive term “tienda” (Spanish for “store”) and the geographic term “Colombia”, which are insufficient to distinguish the domain name from the mark. The inconsequential gTLD “.com” may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <tiendalottocolombia.com> domain name was registered on January 14, 2022, many years after Complainant registered its LOTTO mark. Although Complainant asserts that the domain name is not active, a search by the Panel shows that the domain name resolves to a website prominently displaying Complainant’s LOTTO mark and its design mark as they appear on Complainant’s website, and offering for sale clothing of the kind provided by Complainant.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <tiendalottocolombia.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s LOTTO mark and its design mark when Respondent registered the <tiendalottocolombia.com> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s marks as to the source of Respondent’s website and of the goods promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tiendalottocolombia.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: April 13, 2023
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