Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Ohio Lottery Commission, Cleveland, OH, USA ("Complainant") represented by Susan D. Rector, of Schottenstein, Zox & Dunn. The Respondent is John Barbera, Parma, OH, USA ("Respondent").

The domain name at issue is "ohiolotterygames.com" registered with Registrars.com.

The undersigned certifies that he or she has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.

Judge Ralph Yachnin, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 30, 2001; the Forum received a hard copy of the Complaint on January 30, 2001.

On February 1, 2001, Registrars.com confirmed by e-mail to the Forum that the domain name "ohiolotterygames.com" is registered with Registrars.com and that the Respondent is the current registrant of the name. Registrars.com has verified that Respondent is bound by the Registrars.com 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 February 1, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 21, 2001 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@ohiolotterygames.com 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 28, 2001, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Judge 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 the Respondent.

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

A. Complainant

Complainant alleges the following:

B. Respondent

Respondent has not submitted a response in this matter.

Complainant, Ohio Lottery Commission owns the registered mark OHIO LOTTERY, which it has used in connection with lottery tickets and game cards since August of 1974. Complainant has spent millions of dollars each year promoting its famous mark. As a result, the OHIO LOTTERY mark is exclusively associated with Complainant’s goods and services.

Respondent, John Barbera, has no affiliation or relationship with Complainant and is not authorized to use the domain name in question. On October 6, 2000, the Ohio Attorney General’s Office sent a Cease and Desist letter to Respondent by certified mail concerning the domain name at issue. On October 30, 2000, Respondent replied stating it did not intend to use the domain name and would entertain offers to buy the disputed domain name. Accordingly, Complainant offered to buy the domain name for Respondent’s documented out-of-pocket costs, to no avail.

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(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.

Complainant’s rights are evidenced by its registered mark, OHIO LOTTERY. Respondent’s domain name, ohiolotterygames.com, is virtually identical because it combines Complainant’s mark with a generic term that is directly associated with Complainant’s business. See Space Imaging LLC v. Brownwell, AF 0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the Respondent’s domain name combines the Complainant’s mark with a generic term that has an obvious relationship to the Complainant’s business); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that "[n]either the addition of an ordinary descriptive word…nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY" and thus Policy 4(a)(i) is satisfied).

The Panel finds that Policy ¶ 4 (a)(i) has been sufficiently demonstrated.

Complainant has shown Respondent is not commonly known by the domain name at issue, nor is Respondent using the domain name in connection with a bona fide offering of goods, services or for a legitimate noncommercial or fair use. See Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

In addition, Respondent asserted no rights or legitimate interests in the domain name at issue. Accordingly, the Panel is entitled to conclude that Respondent has no such rights or legitimate interests in relation to the disputed domain name. See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. and D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interest where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any such right or interest that it may possess); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names").

Consequently, the Panel finds that Policy ¶ 4 (a)(ii) has been satisfied.

Complainant has demonstrated Respondent’s only use of the domain name at issue was to offer it for sale to Complainant, which shows that the domain name was registered primarily for the purpose of selling, renting, or otherwise transferring the domain name to Complainant. See American Anti-Vivisection Soc’y v. "Infa dot Net" Web Services, FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that "general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith"); see also America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where Respondent offered domain names for sale).

Moreover, given the popularity of Complainant’s mark, Respondent had to have been aware of the mark prior to registering the domain name at issue. See Reuters Ltd. v. Teletrust IPR Ltd., D2000-0471 (WIPO Sept. 8, 2000) (finding that the Respondent demonstrated bad faith where the Respondent was aware of the Complainant’s famous mark when registering the domain name as well as aware of the deception and confusion that would inevitably follow if he used the domain names); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the "domain names are so obviously connected with the Complainants that the use or registration by anyone other than Complainants suggests ‘opportunistic bad faith’").

Having established all three elements required under ICANN Policy, the Panel concludes that the requested relief shall be and is hereby granted.

Accordingly, it is Ordered that the domain name, ohiolotterygames.com, be transferred from Respondent to Complainant.