The Complainant is S.L.E. Services aux Loteries en Europe of Bruxelles, Belgium, represented by Inlex IP Expertise, France.
The Respondent is Domains By Proxy, LLC of Scottsdale, Arizona, United States of America / Finchdale Limited of St Julians, Malta. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 6, 2014. On February 6, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 7, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 10, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on February 10, 2014.
The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint with amendment, and the proceedings commenced on February 13, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 5, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 6, 2014.
The Center appointed Luca Barbero as the sole panelist in this matter on March 13, 2014. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is a Belgian company founded in 2003 which operates a lottery game named “Euromillions” in collaboration with the operators of public lotteries in several member states of the European Union. The Eromillions game was originally launched in 2004 in the United Kingdom of Great Britain and Northern Ireland, Spain and France, and was subsequently extended to Austria, Belgium, Ireland, Luxembourg, Portugal and Switzerland.
The Complainant is the owner of numerous trademarks constituted of or including EUROMILLIONS, such as the Community Trademark Nos. 29847568 for EUROMILLIONS (word mark), filed on December 23, 2002, in classes 9, 16, 28, 35, 36, 38 and 41; 3644564 (figurative mark), filed on January 27, 2004, in classes 9, 16, 28, 35, 38 and 41; and 9656638 (figurative mark), filed on January 13, 2011 in classes 9, 16, 28, 35, 36, 38 and 41.
The Complainant is also the owner of several domain names containing the EUROMILLIONS mark, including the domain names , registered on February 25, 2004, and , registered on March 5, 2006.
The disputed domain name was created on August 5, 2011. 5. Parties’ Contentions A. Complainant
The Complainant submits that the Euromillions lottery is nowadays one of the most popular games within the Europen Union and states that the trademark EUROMILLIONS has gained a significant recognition in the countries where the game is offered. The Complainant also highlights that UDRP panels have recognized that the trademark EUROMILLIONS is well-known in Europe.
The Complainant contends that the disputed domain name is confusingly similar to the trademark EUROMILLIONS as the addition of the generic term “online” does not change the overall impression that the disputed domain name is connected to the Complainant’s trademark.
The Complainant states that the Respondent does not have any rights or legitimate interests in the disputed domain name as it does not make any use of a business name including “Euromillions” and has no trademark rights over EUROMILLIONS.
The Complainant also asserts that the Respondent has not been authorized by the Complainant to use the trademark EUROMILLIONS and no business relationship does exist between the Complainant and the Respondent.
In addition, the Complainant highlights that the disputed domain name was redirected to a website reproducing, without the authorization of the Complainant, a logo similar to the Complainant’s one and allowing to play games named Euromillions, thus in direct competition with the Complainant’s Euromillions games.
In view of the above, the Complainant concludes that the Respondent does not hold a right or legitimate interest in the disputed domain name as it is using it deliberately for creating confusion in the users’ minds between the Complainant’s game and the Respondent’s business.
As to the bad faith requirement, the Complainant asserts that the Respondent could not ignore the existence of the Complainant’s company and websites at the time of the registration of the disputed domain name.
The Complainant also informs the Panel that it sent a cease and desist letter and subsequent reminders to the Respondent and that, following receipt of the first communications from the Complainant, the Respondent hid its identity through the privacy service provided by Domains by Proxy, LLC.
With reference to the use of the disputed domain name, the Complainant states that the Respondent’s redirection of it to a website allowing to play games named Euromillions and reproducing without authorization a logo similar to the Complainant’s trademark constitutes evidence of bad faith, since the Respondent is attempting to attract Internet users to its website and to benefit of the notoriety of the Complainant’s game. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires that the Complainant demonstrate that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The disputed domain name entirely reproduces the Complainant’s registered trademark EUROMILLIONS with the addition of the generic word “online” and the generic Top-Level Domain (gTLD) “.org”. For the purposes of determining identity or confusing similarity in UDRP proceedings, the gTLD does not generally need to be considered.
According to previous UDRP decisions, the “addition of merely generic, descriptive, or geographical wording to a trademark in a domain name would normally be insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP” (see paragraph 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)).
The Panel therefore finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark EUROMILLIONS according to paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires that the Complainant demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name.
With respect to this requirement, a complainant is generally required to make a prima facie case that a respondent lacks rights or legitimate interests and, once such prima facie case is made, the burden of production shifts to the respondent to submit appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name (WIPO Overview 2.0, paragraph 2.1).
In the present case, the Panel finds that the Complainant has made a prima facie case and that the Respondent, which has not responded to the Complaint, has failed to demonstrate any rights and/or legitimate interests in the disputed domain name.
The Complainant has not authorized the Respondent’s use of the trademark EUROMILLIONS and there is no evidence showing that the Respondent might be commonly known by the disputed domain name. In addition, from the evidence on records, showing that the disputed domain name has been redirected to a website where a logo similar to the Complainant’s one was published and substantially identical games were provided, the Panel infers that the Respondent has not used the disputed domain name in connection with a bona fide offering of goods or service and has not made a legitimate noncommercial or fair use of the disputed domain name.
The Panel therefore finds that the Complainant has proven that the Respondent has no rights or legitimate interests in respect of the disputed domain name according to paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the Complainant demonstrate that the disputed domain name has been registered and is being used in bad faith.
The Panel finds that, in light of the prior registration and use of the trademark EUROMILLIONS in connection with the Complainant’s lottery games in several countries of the European Union, the Respondent’s registration of the disputed domain name, confusingly similar to the trademark EUROMILLIONS, cannot be ascribed to a mere coincidence.
In addition, the Respondent’s use of a logo similar to the Complainant’s one and its provision, on the website published at the disputed domain name, of lottery games in direct competition with the Complainant suggests that the Respondent was indeed actually aware of the Complainant’s trademark at the time of the registration of the disputed domain name.
In view of the above-described use of the disputed domain name, the Panel finds that the Respondent registered and used the disputed domain name to intentionally attract, for its own commercial gain, Internet users to its website, by causing a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the website by the Complainant according to paragraph 4(b)(iv) of the Policy.
The Panel also finds that the adoption of a privacy service after receipt of the Complainant’s cease and desist letters and the Respondent’s failure to respond to the Complainant’s communications and to the Complaint are additional circumstances evidencing the Respondent’s bad faith.
In light of the above, the Panel concludes that the disputed domain name was registered and is being used in bad faith according to paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Luca Barbero
Sole Panelist
Date: March 27, 2014
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