DECISION

New Hampshire Sweepstakes Commission v. We Web Well, Inc.

Claim Number:  FA0309000197499

PARTIES

Complainant is New Hampshire Sweepstakes Commission, Concord, NH (“Complainant”) represented by Mark A. Wright, of McLane, Graf, Raulerson & Middleton, P.A., 900 Elm St., PO Box 326, Manchester, NH  03105.  Respondent is We Web Well, Inc., 113 Ferry Street,  Newark, NJ  07105 (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <nhlottery.com>, registered with Names4ever.

PANEL

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

Tyrus R. Atkinson, Jr., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on September 19, 2003; the Forum received a hard copy of the Complaint on the same day.

On September 22, 2003, Names4ever confirmed by e-mail to the Forum that the domain name <nhlottery.com> is registered with Names4ever and that Respondent is the current registrant of the name. Names4ever has verified that Respondent is bound by the Names4ever 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 September 24, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 14, 2003 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@nhlottery.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 October 23, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr., 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 Respondent.

RELIEF SOUGHT

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

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <nhlottery.com> domain name is confusingly similar to Complainant’s NEW HAMPSHIRE LOTTERY mark.

2. Respondent does not have any rights or legitimate interests in the <nhlottery.com> domain name.

3. Respondent registered and used the <nhlottery.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant has used the mark, NEW HAMPSHIRE LOTTERY, in commerce in connection with the promotion, marketing, advertising and selling of lottery tickets since 1964. Complainant operates a website located at the <newhampshirelottery.com> domain name (registered January 4, 2000).  Complainant filed its trademark application for the NEW HAMPSHIRE LOTTERY mark with the United States Patent and Trademark Office on December 26, 2001 and registered its mark on January 21, 2003. 

Respondent registered the <nhlottery.com> domain name on April 16, 2001.  Respondent is not currently using the disputed domain name.  It had also registered the domain names <illottery.com>, <aklottery.com>, and <arlottery.com>.

DISCUSSION

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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

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.

Identical and/or Confusingly Similar

The domain name in dispute is confusingly similar to Complainant’s established and registered mark. The use of the abbreviation NH is commonly used for the state of New Hampshire.  Therefore, Respondent’s domain name, <nhlottery.com>, is confusingly similar to Complainant’s mark, NEW HAMPSHIRE LOTTERY. See Minn. State Lottery v. Mendes, FA 96701 (Nat. Arb. Forum Apr. 2, 2001) (finding that the <mnlottery.com> domain name is confusingly similar to Complainant’s MINNESOTA STATE LOTTERY registered mark); see also, Microsoft Corp. v. Montrose Corp., D2000-1568 (WIPO Jan. 25, 2001) (finding the domain name <ms-office-2000.com> to be confusingly similar even though the mark MICROSOFT is abbreviated).

Complainant has satisfied the requirements under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not demonstrated any use of the disputed domain name and has not come forward to explain what legitimate use it might have for the name.  Thus, the Panel may presume that Respondent lacks rights and legitimate interests in the domain name at issue.  See Desotec N.V. v. Jacobi Carbons, AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence); 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); see also, eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the "use of complainant’s entire mark in infringing domain names makes it difficult to infer a legitimate use").

There is no evidence in the record to suggest that Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii), and given the direct relationship between the name and the business of Complainant, such a claim would be highly implausible.  See Nike, Inc. v. B. B. de Boer, D2000-1397 (WIPO Dec. 21, 2000) (finding that no person besides Complainant could claim a right or a legitimate interest with respect to the domain name <nike-shoes.com>); see also CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that Respondent failed to demonstrate any rights or legitimate interests in the <twilight-zone.net> domain name since Complainant had been using the TWILIGHT ZONE mark since 1959).

By passively holding the domain name without use, Respondent has not demonstrated a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Ziegenfelder Co. v. VMH Enterprises, Inc. D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondent has not established any rights or legitimate interests in a domain name); see also Ritz-Carlton Hotel v. Club Car Executive, D2000-0611 (WIPO Sept. 18, 2000) (finding no legitimate rights or interests when Respondent has not used the domain names in connection with any type of bona fide offering of goods and services).

Complainant has satisfied the requirements under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Complainant has shown that Respondent has demonstrated bad faith by not developing a web site utilizing the domain name. Passive holding of a domain name permits an inference of registration and use in bad faith. See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the Respondent’s passive holding of the domain name satisfies the requirement of paragraph 4(a)(iii) of the Policy); see also Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the Respondent had made no use of the domain name or web site that connects with the domain name, and passive holding of a domain name permits an inference of registration and use in bad faith).

When a party obtains a domain name of a well-known trademark, with no connection to the entity holding the mark, it is evidence of bad faith.  The name <nhlottery.com>, as stated above, strongly implies affiliation with the Complainant. Respondent has not shown that he is authorized by the New Hampshire legislature to conduct a lottery in New Hampshire. Respondent is not engaged in operation of any state lottery and it is likely it would be illegal for him to do so without legislative approval. Accordingly, registering the name <nhlottery.com> was in bad faith. See Singapore Airlines Ltd v. P & P Servicios de Communicacion S.L., D2000-0643 (WIPO Aug. 29, 2000) ("[t]he domain name <singaporeairlines.com> is so obviously connected with a well-known airline that its very registration and use by someone with no connection to the airline suggests opportunistic bad faith…").

Complainant provided WHOIS evidence that Respondent has registered at least three other domain names utilizing state abbreviations with the word lottery—<illottery.com>, <aklottery.com>, and <arlottery.com>.  Respondent has exhibited bad faith by engaging in a pattern of registering domain names to prevent the true owners of the trademarks from reflecting their mark in domain names.  See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (finding that Respondent violated ¶ 4(b)(ii), as revealed by the number of other domain name registrations incorporating others’ trademarks and the fact that the domain names in question do not link to any on-line presence or website); see also Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)). 

Complainant has satisfied the requirements under Policy ¶ 4(a)(iii).

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <nhlottery.com> domain name be TRANSFERRED from Respondent to Complainant.

Tyrus R. Atkinson, Jr., Panelist

Dated:  November 3, 2003

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