The Complainant is S.L.E. Services aux Loteries en Europe Société coopérative à responsabilité limitée of Brussels, Belgium, represented by Inlex IP Expertise, France.
The Respondent is Shawn Roberts of Bromley, the United Kingdom. 2. The Domain Name and Registrar
The disputed domain name is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 2, 2018. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 2, 2018, 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 November 12, 2018, 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 amended Complaint on November 15, 2018.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 22, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 12, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 13, 2018.
The Center appointed Knud Wallberg as the sole panelist in this matter on December 21, 2018. 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 entity incorporated in 2003 for coordinating, managing and operating the lottery game called “EuroMillions”, which was launched in February 2004.
The Complainant holds several trademark registrations and applications for EUROMILLIONS as logo and as word mark, including European Union Trademark registration No. 002987568, registered on September 28, 2004, covering goods and services in classes 9, 16, 28, 35, 36, 38, and 41.
The Respondent registered the disputed domain name with Namecheap Inc on April 25, 2017. The disputed domain name resolves to a website that purports to reproduce the winning numbers of the EuroMillions lottery. 5. Parties’ Contentions A. Complainant
The Complainant asserts that the disputed domain name is confusingly similar to the Complainant’s trademark EUROMILLIONS, since it incorporates the mark in its entirety and the addition of the word “numbers” and the generic Top-Level Domain (“gTLD”) “.info” is insufficient to avoid a finding of confusing similarity between the disputed domain name and the Complainant’s marks.
The Complainant further asserts that the Respondent does not use EUROMILLIONS as a business name nor is it commonly known under that name, that the Respondent and has no rights to the name EUROMILLIONS, that the Respondent has not been authorized by the Complainant to use the trademark EUROMILLIONS, and that the Respondent is neither using the disputed domain name in connection with a bona fide offering of services nor for legitimate noncommercial or fair purposes.
Finally the Complainant asserts that the Respondent has registered and is using the disputed domain name in bad faith, due to the notoriety of the EUROMILLIONS trademark, the Respondent’s failure to respond to the Complainant’s cease and desist letter, and due to the Respondent’s attempt to attract Internet users to the Respondent’s website by associating the website with the notoriety of the “EuroMillions” game. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 15(a) of the Rules the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainants’ registered trademark EUROMILLIONS in the sense of paragraph 4(a)(i) of the Policy. The disputed domain name incorporates this mark in its entirety with the addition of the term “numbers”. The gTLD “.info” does prevent a finding of confusing similarity.
The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled in relation to the disputed domain name. B. Rights or Legitimate Interests
It is clear from the facts of the case that the Complainant has not licensed or otherwise permitted the Respondent to use the EUROMILLIONS trademark and that the Respondent has no independent rights in term “EUROMILLIONS”.
The Complainant further asserts, that the Respondent has no legitimate interests in the disputed domain, but the Complaint does not include any reasoning for this assertion. The way that the disputed domain name is composed, namely of the three parts “euromillions”, “numbers” and “.info”, does however give rise for the Panel to further evaluate whether the Respondent may have a legitimate interest in using the disputed domain name to provide information on the winning numbers of the “EuroMillions” game. The website that is available under the disputed domain name thus appears to reproduce the “draw results” of a number of draws in the “EuroMillions” game. However, the reproduced draw results are all from 2015 and 2016, the latest being from March 22, 2016, which predate the current registrant’s – the Respondent’s – registration date of the disputed domain name. This fact and the fact that other parts of the website are not updated, makes the Respondent’s purpose for registering the disputed domain name unclear. However, the Panel finds that on the evidence in front of it, the Respondent is not engaged in a bona fide activity as it reproduces the Complainant’s marks and misleadingly mimics the Complainant.
Paragraph 4(a) of the Policy states that the burden of proving that all the three elements of the UDRP are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
The Respondent has been given the opportunity to respond to the Complaint and thus to provide the Panel with its views and arguments as to his possible rights or legitimate interests in the disputed domain name case but has chosen not to do so, just as the Respondent did not reply to the cease and desist letter that was sent by the Complainant prior to these proceedings. On the balance, the Panel therefore finds that the Complainant has demonstrated that the Respondent has no rights or legitimate interests in the disputed domain name.
Consequently, the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy are also fulfilled. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides an example of circumstances which shall be evidence of registration and use in bad faith:
(i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who 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 its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
Given the circumstances of the case including the evidence on record including the distinctive nature and the reputation of the mark EUROMILLIONS, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and of the Complainant’s mark. Further, the Panel finds that the Respondent could not have been unaware of the fact that it chose a domain name which could attract Internet users in a manner that is likely to create confusion for such users.
The Panel therefore finds that the disputed domain name was registered in bad faith.
As mentioned above, the disputed domain name is used for a website which contains the draw results of several “EuroMillions” games in 2015 and 2016. On the website the Respondent uses a logo in the top left corner that contains the Complainant’s trademark EUROMILLIONS, just as the website contains a reproduction of the Complainant´s registered EUROMILLIONS logo on the right-hand side. In particular, the inclusion of such logo is likely to give Internet users the impression that the website is authorized by the Complainant, which is not the case.
In addition, the website contains a list of and links to what is named the “Best EuroMillions Lottery Agents” just as the website contains banner ads from various lottery agents. The Panel therefore finds that the Respondent by its registration and use of the disputed domain name intentionally creates a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the disputed domain names with the purpose of attracting Internet users to the websites for commercial gain as per paragraph 4(b)(iv) of the Policy.
Consequently, the Panel finds that the conditions in paragraph 4(a)(iii) of the Policy are fulfilled. 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.
Knud Wallberg
Sole Panelist
Date: January 15, 2019
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