The Complainant is NKL Nordwestdeutsche Klassenlotterie of Hamburg, Germany, represented by Osborne Clarke, Germany.
The Respondent is Greg Mullins, xhosting.com of Luxembourg.
The disputed domain name, <nkl.com> (the “Domain Name”), is registered with eNom (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 27, 2009. On November 30, 2009, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 30, 2009, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that 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, and the proceedings commenced on December 4, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was December 24, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 28, 2009.
The Center appointed Tony Willoughby as the sole panelist in this matter on January 5, 2010. 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.
The evidence of the Complainant, supported by appropriate documentation, is that the contact details provided for the Respondent on the Registrar's WhoIs database are false in that (a) the telephone number provided is a telephone number of the Agricultural Administration of Luxembourg, not the Respondent and the Respondent was not known at that number; (b) the fax number provided is not a valid fax number; (c) the postal address is the address of a car rental company not that of the Respondent and the Respondent was not known at that address.
None of the Complainant's or the Center's emails sent to the email address provided for the Respondent has evoked a reply. There is no suggestion that the emails to the Respondent did not get through, but even if it is the case that the Respondent is unaware of this administrative proceeding, the Panel is nonetheless satisfied that there has been due compliance with the Policy and the Rules by both the Complainant and the Center.
The Complainant is one of the largest German state-owned lottery providers.
The Complainant is the registered proprietor of a large number of German and European Community trade mark registrations of or including the letters “NKL” including by way of example German national trade mark registration number 39642140 NKL (word mark) dated September 26, 1996 in class 35 for inter alia lottery-related services.
The WhoIs records provided by DomainTools show that the Complainant was the proprietor of the Domain Name from at least as early as 2001 until 2006, but that towards the end of that year the Domain Name was transferred to Lewis Central at an address in London, England. In July 2007 the identity of the registrant became protected by a privacy service based in California, United States of America. On the evidence before the Panel, the Respondent first became identified as the registrant of the Domain Name in February 2008.
The evidence of the Complainant, which in the particular circumstances of this case the Panel is prepared to accept as fact even though there are some gaps in the documentary support, is as follows:
a. In 2006 the Domain Name was transferred to a third party without the Complainant's knowledge or consent
b. Notwithstanding that transfer and subsequent transfers, the Domain Name remained linked to the Complainant's website until a date in 2009
c. The Complainant first became aware that it was no longer the registrant of the Domain Name when the Domain Name ceased to be linked to the Complainant's website.
d. On November 7, 2009 the Complainant's representatives wrote to the Respondent drawing attention to the Complainant's rights and seeking transfer of the Domain Name.
e. On the same day the Complainant's representatives wrote to Namejet of Washington State, United States of America drawing that entity's attention to the Complainant's rights and complaining that it was then offering the Domain Name for sale by auction.
f. As at November 23, 2009 the Domain Name was parked on a PPC parking page featuring sponsored links to a variety of sites including gambling related sites.
The Complainant contends that the Domain Name is identical to its registered trade mark, NKL.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name.
Finally, the Complainant contends that the Domain Name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant's contentions.
According to paragraph 4(a) of the Policy, the Complainant must prove that
(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered in bad faith and is being used in bad faith.
The Domain Name features the Complainant's registered trade mark, NKL, and the generic domain suffix. For the purposes of assessing identity/confusing similarity in proceedings under the Policy it is normal to ignore the generic domain suffix.
The Panel finds that the Domain Name is identical to a trade mark in which the
Complainant has rights.
The Complainant contends that to the best of its knowledge and belief the Respondent has no registered rights in respect of the Domain Name. The Domain Name was in use until November 2009 to connect to the Complainant's website. The Complainant states that it has granted the Respondent no permission to use its trade mark and observes that the Respondent's name does not bear any relation to the Domain Name.
The Panel is satisfied that the Complainant has made out a prima facie case under this head, which calls for an answer from the Respondent.
There being no response from the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
The history of the ownership of the Domain Name is an unusual one. Up to a date in 2006 it was owned by the Complainant, one of the largest state-owned lottery providers in Germany. In 2006, by a subterfuge and without the Complainant's knowledge or consent, it was transferred to an entity in London, England. In July 2007 the identity of the registrant was hidden by a privacy service. In February 2008 the Respondent became named as the registrant. Throughout the entirety of that period from the moment that the Complainant first started using the Domain Name several years ago up until November 2009 the Domain Name was linked continuously to the Complainant's website. It was only when that link was broken in November 2009 that the Complainant realized that it was no longer the registrant of the Domain Name.
In November 2009 when the Domain Name ceased to be linked to the Complainant's website, the Respondent allegedly put it up for sale through NameJet, a sale which the Complainant claims to have stopped by writing to NameJet. Thereafter it has been linked to a PPC parking page featuring links to various sites including gambling-related sites. The screen shot annexed to the Complaint shows the links to be German language links.
The Complainant contends that the Domain Name was registered and is being used in bad faith on the basis of (a) the attempted auction sale and (b) the link for commercial gain by way of the parking page.
The evidence supporting the alleged auction sale is sparse (a bare assertion in the Complaint and an unparticularised allegation in a cease and desist letter) and the Panel ignores it. As to the link to the parking page, the Panel accepts that the link was made for commercial gain and is also prepared to accept that the Respondent must have known at the time that NKL was a trade mark of the Complainant, the Domain Name having been linked by him for at least 22 months to the Complainant's website, and must also have known that a not insubstantial number of German Internet users would be likely to be attracted to the parking page and the gambling links to be found there on the back of the fame of the Complainant's trade mark in Germany. The Panel is satisfied that that constitutes bad faith use of a domain name for the purposes of paragraph 4(a)(iii) of the Policy.
However, to succeed in a complaint under the Policy the Complainant must prove bad faith registration as well as bad faith use. What were the Respondent's motives at time of acquisition of the Domain Name? For what purpose did he acquire the Domain Name? If his intention was to exploit the Complainant's trade mark commercially, why did he leave it for at least 22 months before linking the Domain Name to a PPC parking page?
Only the Respondent can answer those questions and he has not sought to provide an answer. While it is for the Complainant to prove all the elements of paragraph 4(a) of the Policy, it is permissible for the Panel to draw such inferences as it seems proper for the Panel to draw on the basis of the evidence before him.
The Panel concludes that the Respondent acquired the Domain Name with bad faith intent because (a) he acquired a name to which he had no rights or legitimate interests, knowing it to be the Complainant's trade mark and knowing it to be in use for the benefit of the Complainant and (b) on acquiring the Domain Name he felt it appropriate to provide false information, thereby rendering himself untraceable. In the view of the Panel the first of those matters is sufficient to call into question the Respondent's bona fides and the second renders it more likely than not that the Respondent's overall intent at time of acquisition of the Domain Name was mala fide.
The Panel finds that the Domain Name was registered and is being used in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <nkl.com>, be transferred to the Complainant.
Dated: January 9, 2010