LTWHP, LLC v. Kristian Faust
Claim Number: FA2303002035977
Complainant is LTWHP, LLC (“Complainant”), represented by Eric Perrott of Gerben Perrott, PLLC, USA. Respondent is Kristian Faust (“Respondent”), DE.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lottotürkiye.com> [<xn--lottotrkiye-yhb.com>], registered with Gransy S.R.O D/B/A Subreg.Cz; Gransy, s.r.o..
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.
Charles A. Kuechenmeister, Panelist.
Complainant submitted a Complaint to Forum electronically on March 15, 2023; Forum received payment on March 15, 2023.
On March 16, 2023, Gransy S.R.O D/B/A Subreg.Cz; Gransy, s.r.o. confirmed by e-mail to Forum that the <lottotürkiye.com> [<xn--lottotrkiye-yhb.com>] domain name (the Domain Name) is registered with Gransy S.R.O D/B/A Subreg.Cz; Gransy, s.r.o. and that Respondent is the current registrant of the name. Gransy S.R.O D/B/A Subreg.Cz; Gransy, s.r.o. has verified that Respondent is bound by the Gransy S.R.O D/B/A Subreg.Cz; Gransy, s.r.o. 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 March 17, 2023, Forum served the Complaint and all Annexes, including a 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@xn--lottotrkiye-yhb.com. Also on March 17, 2023, 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 April 10, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister 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 a Response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
The LOTTO Marks are used and registered by Complainant in connection with clothing, accessories, sporting goods and footwear. Complainant has rights in the LOTTO mark based upon its registration of that mark with the United States Patent and Trademark Office (“USPTO”). The <lottotürkiye.com> [<xn--lottotrkiye-yhb.com>] Domain Name is confusingly similar to Complainant’s mark as it wholly incorporates Complainant’s LOTTO mark, merely adding the geographic indicator “Türkiye” and the generic top level domain (“gTLD”) “.com”.
Respondent has no rights or legitimate interests in the Domain Name. It is not using the Domain Name in connection with a bona fide offering of goods or services or for any legitimate or fair use but instead uses it to pass itself off as Complainant and offer Complainant’s goods for sale, and Respondent is not commonly known by the Domain Name.
Respondent registered and uses the Domain Name in bad faith. It registered the Domain Name primarily to disrupt Complainant’s business and is using the confusingly similar Domain name to attract Internet users to its website where it purports to sell Complainant’s goods. Respondent also uses the Domain Name to phish for private personal information from site visitors.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(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; and
(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.
In view of Respondent's failure to submit a Response, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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”), WIPO Overview 3.0, at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
The LOTTO mark was registered to Complainant with the USPTO (Reg. No. 1,379,243) on January 21, 1986 (USPTO Trademark/Service Mark Information printout included in Complaint Exhibit A). Complainant’s registration of its mark with the USPTO establishes its rights in that mark for the purposes of Policy 4(a)(i). DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
The Domain Name is an internationalized domain name (IDN). IDNs permit local language characters, including diacritical marks such as accent marks and umlauts, and Arabic and other scripts, to be used in the Unicode form of a domain name. Domain names are typically registered in an ASCII format, consisting of the Roman letters A through Z and the Arabic numerals 0 through 9. The local language characteristics described above do not appear in the ASCII format. If any element of a domain name contains a non-ASCII character, an algorithm system using Punycode is used to convert the Unicode or IDN form of that domain name to an ASCII format, and the result is prefixed with the three-character string “xn—.“ Thus, as seen in the WHOIS information of record submitted as Complaint Exhibit C and the information furnished to the Forum by the Registrar, the Domain Name in this case, <lottotürkiye.com>, appears as <xn—lottotrkiye-yhb.com>. Panels have routinely treated IDN or Unicode versions of domain names as interchangeable with their ASCII counterparts and have performed the Policy ¶ 4(a)(i) analysis based upon the Unicode or IDN format of the domain name at issue. Damien Persohn v. Lim, FA 874447 (Forum Feb. 19, 2007) (finding an internationalized domain name, <têtu.com>, and its PUNYCODE translation, <xn--ttu-fma.com>, to be one and the same under the Policy), Württembergische Versicherung AG v. Emir Ulu, D2006-0278 (WIPO May 4, 2006) (finding that the <xn--wrttembergische-versicherung-16c.com> should be considered as equivalent to the <württembergische-versicherung.com> domain name, based on previous panel decisions recognizing the relevance of I-nav software for translating German letters such as “ä” or “ü” into codes such as <xn--[name]-16c> and similar). In accordance with this practice, the Panel determines that analyzing the IDN <lottotürkiye.com> rather than its ASCII equivalent <xn—lottotrkiye-yhb.com> is proper.
Respondent’s <lottotürkiye.com> Domain Name is confusingly similar to Complainant’s LOTTO mark. It incorporates the mark in its entirety, merely adding the term “türkiye,” which is the name of the country Turkey, and the “.com” gTLD. These changes do not distinguish the Domain Name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). Chicago Southland Convention & Visitors Bureau v. Daniel, FA 1679347 (Forum July 26, 2016) (finding that complainant had established its rights in the CHICAGO SOUTHLAND mark, despite respondent’s contentions that the mark was “comprised of general geographical terms.”), MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”) omission of the letter ‘y’ and spacing within the mark, and appends the ‘.com’ gTLD.”). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Name.
For the reas ons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the LOTTO mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) Before any notice to the respondent of the dispute, the respondent’s use 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;
(ii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) it is not using the Domain Name in connection with a bona fide offering of goods or services or for any legitimate or fair use but instead uses it to pass itself off as Complainant and offer Complainant’s goods for sale, and (ii) Respondent is not commonly known by the Domain Name. These allegations are addressed as follows:
Complaint Exhibit F is a screenshot of the website resolving from the Domain Name. It displays Complainant’s name and logo, and purports to sell Complainant’s products. The appearance and general layout of these pages are very similar to the appearance and general layout of the pages on Complainant’s website as shown in Complaint Exhibit E. It is obvious that Respondent’s website is designed and intended to convey the impression that it is either Complainant’s website or the site of an authorized dealer of Complainant’s products for sale in Turkey. Passing off as a complainant or authorized representative of a complainant and offering to sell Complainant’s products does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or as a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii). Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”), Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The WHOIS information provided to the Forum by the registrar lists the registrant of the Domain Name as “Kristian Faust.” This name bears no resemblance to the Domain Name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed Domain Name when the identifying information provided by WHOIS was unrelated to the Domain Name or respondent’s use of the same), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Panel is satisfied that Respondent has not been commonly known by the Domain Name for the purposes of Policy ¶ 4(c)(ii).
Complainant has made its prima facie case. On the evidence presented, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the 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 the respondent’s web site or location or of a product of service on the respondent ‘s web site or location.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use, based upon the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, by passing off as Complainant and without authorization offering to sell Complainant’s products, Respondent is clearly using the confusingly similar Domain Name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website. The evidence does not disclose whether Respondent is actually selling the products advertised on its website or fraudulently representing that it does, collecting money from the customer and then not delivering the goods. Regardless of which scenario is present here, Respondent’s conduct fits squarely within the circumstances described in Policy ¶ 4(b)(iv) and is manifest evidence of bad faith registration and use. Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (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).”).
As discussed above, Respondent is using the Domain Name to pass off as Complainant or as an authorized affiliate of Complainant, which it is not. Policy ¶ 4(b) recognizes that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and passing off as a complainant, in and of itself, is evidence of bad faith. Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith 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.”).
Complainant argues that Respondent’s conduct also fits within the circumstances articulated by Policy ¶ 4(b)(iii). That paragraph reads as follows: “you [the respondent] have registered the domain name primarily for the purposes of disrupting the business of a competitor” (emphasis supplied). By using the Domain Name to attract Internet traffic to a web site which passes off as Complainant, Respondent is clearly disrupting the business of Complainant. And, by purportedly offering to sell Complainant’s products, Respondent is also competing with Complainant.
There is, however, another aspect of the concept of competition to be considered in connection with an analysis of Policy ¶ 4(b)(iii). In order for a respondent’s conduct to fall within the circumstances described in that paragraph, the competition must exist before the domain name is registered. Otherwise, the respondent’s conduct would not fall within the language of ¶ 4(b)(iii), paraphrased as “you registered the domain name primarily to disrupt the business of a competitor.” The competition must exist before, and inspire the registration. In this case there is no evidence that Respondent was competing with Complainant prior to December 2020, when the Domain Name was registered (WHOIS printout submitted as Complaint Exhibit C shows the creation date), and it appears that any actual competition between them arose only after Respondent registered and began using the Domain Name. Even then, it is questionable whether disrupting the Complainant’s business was Respondent’s primary purpose in registering the Domain Name. On the contrary, the evidence strongly suggests that Respondent’s primary motive was not so much to harass or annoy an existing commercial adversary as it was to trade upon Complainant’s goodwill and reputation and profit commercially by creating confusion as to the source, sponsorship, affiliation or endorsement of its site, which is properly addressed under Policy ¶ 4(b)(iv). Respondent’s conduct does not fall within Policy ¶ 4(b)(iii).
That said, using a confusingly similar domain name to attract Internet traffic to a web site which passes off as and disrupts the business of a complainant is still bad faith. Given the non-exclusive nature of Policy ¶ 4(b) using a confusingly similar domain name to disrupt the business of a complainant by passing off as and competing with that complainant is sufficient evidence of bad faith to meet the requirements of Policy ¶ 4(a)(iii). Respondent knew or should have known the disruptive impact its conduct would have upon Complainant’s business. Respondent intentionally went forward with its plans in spite of that and this demonstrates bad faith independently of Policy ¶ 4(b)(iii). Red Wing Shoe Company, Inc. v. wei zhang / Magdalena Jennifer / Mu Yan / Carolina Rodrigues / Fundacion Comercio Electronico, FA1911001873163 (Forum January 3, 2020).
Finally, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the Domain Name in December 2020 (WHOIS printout submitted as Complaint Exhibit C show the creation date). Complainant began using its mark at least as early as 1984 (USPTO Trademark/Service Mark Information printout included in Complaint Exhibit B states a filing date in August of that year). More importantly, Respondent passes off as Complainant and purports to offer Complainant’s products using Complainant’s name and distinctive logo. There is no question that Respondent knew of Complainant and its mark when it registered the Domain Name. Given the non-exclusive nature of Policy ¶ 4(b), registering a confusingly similar domain name with actual knowledge of a complainant’s rights in its mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Complainant also alleges that Respondent’s web site is used to “steal visitors’ financial and personal information.” The Panel observes no evidence of this in any of the exhibits furnished by Complainant and its argument in this regard is rejected.
For the reasons first set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lottotürkiye.com> [<xn—lottotrkiye-yhb.com>] Domain Name be TRANSFERRED from Respondent to Complainant
Charles A. Kuechenmeister, Panelist
April 13, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page