`
`
`
`Sean Kealii Enos (#023634)
`Jeffrey W. Johnson (#024435)
`SCHMEISER, OLSEN & WATTS, LLP
`18 E. University Drive, Suite 101
`Mesa, Arizona 85201
`Telephone: (480) 655-0073
`Facsimile: (480) 655-9536
`kenos@IPlawUSA.com
`jjohnson@IPlawUSA.com
`
`Attorneys for Plaintiff
`
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF ARIZONA
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`
`
`Plaintiff,
`
`David Dent, an Individual,
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`
`
`
`
`
`
`Lotto Sport Italia S.p.A, an Italian
`Corporation,
`
`
`
`
`vs.
`
`
`
`Defendant.
`
`
`
`Case No.
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`COMPLAINT UNDER 15 USC 1114
`FOR REVERSE DOMAIN HI-
`JACKING, DECLARATORY RELIEF
`UNDER THE LANHAM ACT, AND
`TORTIOUS INTERFERENCE WITH
`CONTRACT
`
`DEMAND FOR JURY TRIAL
`
`
`Plaintiff David Dent (hereinafter “Dent” or Plaintiff) hereby complains
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`
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`against defendant Lotto Sport Italia S.p.A, an Italian Corporation (hereinafter “Lotto
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`Sport”), and for its causes of action alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`This is an action brought by Plaintiff Dent against Defendant Lotto Sport
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`pursuant to 15 U.S.C. 1114(2)(D)(iv)-(v) and for declaratory relief pursuant to 28
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`U.S.C. 2201 to establish that Dent’s registration and use of the internet domain names
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 2 of 14
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`<lottoworks.com> and <lottostore.com> (the "Domain Names") is not unlawful under
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`the Anticybersquatting Consumer Protection Act (15 U.S.C. $ 1125(d)("ACPA"), or
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`otherwise under the Lanham Act (15 U.S.C. $ 1051 et. seq.), and to prevent the transfer
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`of the Domain Names to Defendant, which were ordered in an administrative panel
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`decision notified on February 21, 2017 under the Uniform Domain Name Dispute
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`Policy ("UDRP") in a proceeding captioned: Lotto Sport Italia S.p.A. v. David Dent,
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`WIPO Case No. D2016-2532.
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`PARTIES
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`2.
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`Plaintiff David Dent is a citizen and resident of Canada, having an address
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`of 4467 Harris Place, North Vancouver, British Columbia V7G 1E9, Canada.
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`3.
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`On information and belief, Defendant Lotto Sport s.p.A is a corporation of
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`Italy having a principal address of Via Montebelluna, 5/7 31040 Trevignano (Treviso),
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`Italy.
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`JURISDICTION AND VENUE
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`4.
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`This Court has subject matter jurisdiction over this action because it
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`involves a federal question, and because it requires a declaration of rights and other
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`legal relations. More specifically, this Court has jurisdiction pursuant to 28 U.S.C.
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`1331 (because this cause arises under 15 U.S.C. 1114 in that Plaintiff is the registrant of
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`a domain name which has been suspended, disabled, or transferred under a policy
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`provided by the registrar thereof relating to alleged conflict with a trade or service mark
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`claimed by the Defendant), and under 28 U.S.C. 2201(a) (“In a case of actual
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`controversy within its jurisdiction, . . . any court of the United States, upon the filing of
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`an appropriate pleading, may declare the rights and other legal relations of any
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 3 of 14
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`interested party seeking such declaration, whether or not further relief is or could be
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`sought.”).
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`5.
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`This Court has personal jurisdiction over Defendant Lotto Sport because
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`Defendant agreed to submit to the jurisdiction of this Court when it initiated an
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`administrative proceeding pursuant to the Uniform Domain Name Dispute Resolution
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`Policy (the "UDRP") concerning the Domain Name. Specifically, Defendant Lotto
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`Sport agreed in its UDRP complaint to submit to jurisdiction of the registrar in
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`connection with a challenge of a UDRP decision ordering a transfer of the Domain
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`Names.
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`6.
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`The registrar for the Domain Names is GoDaddy LLC, having its
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`principal office at 14455 N Hayden Rd Suite 219, Scottsdale, Arizona 85260, in this
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`judicial district.
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`7.
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`Defendant Lotto Sport has directed activity into this judicial district with
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`the intent to deprive Plaintiff Dent of rights under a contract having a situs in this
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`judicial district.
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`8.
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`Venue is proper in this Court pursuant to 28 U.S.C. 1391(b)(1) and (2). In
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`addition, the relevant sponsoring registrar, GoDaddy.com, Inc. (“GoDaddy”), is located
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`within this Judicial District, and the registration contract for domain names with
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`GoDaddy provides that jurisdiction and venue over disputes in relation to the contract is
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`Arizona, stating that “(N) Exclusive Venue for Other Controversies. GoDaddy and you
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`agree that any controversy excluded from the dispute resolution procedure and class
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`action waiver provisions in this Section (other than an individual action filed in small
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`claims court) shall be filed only in the Superior Court of Maricopa County, Arizona, or
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`the United States District Court for the District of Arizona, and each party hereby
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 4 of 14
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`irrevocably and unconditionally consents and submits to the exclusive jurisdiction of
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`such courts for any such controversy. You also agree to waive the right to trial by jury
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`in any such action or proceeding."
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`9.
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`Pursuant to the Uniform Domain Name Dispute Resolution Policy
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`(“UDRP”) Paragraph 3(b)(xiii), the Complainant (in this case, now Defendant) is
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`required to explicitly consent to a “mutual jurisdiction,” in which challenges to a
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`decision under the UDRP may be brought by the Respondent (in this case, now
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`Plaintiff). As discussed below, Defendant expressly consented to jurisdiction in this
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`District for actions such as this one.
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`FACTS
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`10.
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`Plaintiff Dent is a co-founder, majority owner and principal of Trimark
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`Ltd., a Gibraltar corporation engaged in the development and licensing of software and
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`technical services for online gambling operators in jurisdictions where such operations
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`are licensed for operation. Through his company Trimark Ltd. and predecessor
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`organizations, the Dent has been involved in the development and licensing of software
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`relevant to the conduct of lottery, bingo and casino games for over ten years prior to this
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`action.
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`11.
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`In 2016, a company which had contracted to distribute Plaintiff's software
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`discontinued operations, and the Plaintiff decided to continue the development of his
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`operations into providing direct online lottery gambling services to the public in such
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`jurisdictions where online lottery gambling can be licensed.
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`12.
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`Pursuant to the Plaintiff's decision to expand into direct lottery gambling
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`services, the Plaintiff expended substantial resources for software and user interface
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`development, and other operation planning and preparations. Plaintiff additionally
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 5 of 14
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`sought to find two domain names to establish an online presence for the eventual launch
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`of the expanded services, such that one domain name would be used for corporate
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`operations and licensing matters, and the other domain name would be the Plaintiff's
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`online presence for lottery gaming services.
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`13.
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`The term "lotto" is a generic word long defined as, for example, "a game
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`resembling bingo" by Webster's New World Dictionary, Third College Edition, 1988
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`(Simon & Schuster), and is commonly used in reference to lotteries.
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`14.
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`The term "lotto" is generic in relation to gambling software services long
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`provided by the Plaintiff through the companies of which Plaintiff is a principal, and is
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`directly generic of the services which the Plaintiff has been preparing to launch.
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`15.
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`The United States Patent and Trademark Office has repeatedly and
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`consistently recognized that "lotto" is a generic term in connection with services
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`essentially identical to Plaintiff's services, and has required specific disclaimers of
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`exclusive rights in the word "lotto" in relation to gaming services in a large number of
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`marks registered or pending on the Principal Register under the Lanham Act. For
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`example, as recently as May 7, 2015, in relation to an application to register "CLOVER
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`LOTTO" and design, US TM Reg. No. 4,965,712, the United States Patent Office
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`issued an Office Action referring to the dictionary definition of the word "lotto" and
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`stating:
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`"Applicant must disclaim the word “LOTTO” because it merely describes an
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`ingredient, quality, characteristic, function, feature, purpose, or use of applicant’s
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`goods and/or services, and thus is an unregistrable component of the mark. See
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`15 U.S.C. §§1052(e)(1), 1056(a); DuoProSS Meditech Corp. v. Inviro Med.
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`Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012)
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 6 of 14
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`(quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370,
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`1371 (Fed. Cir. 2004)); TMEP §§1213, 1213.03(a). The attached evidence from
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`an online dictionary shows this word to refers to “a game of chance similar to
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`bingo”. Applicant has identified gaming software encompassing that for use in
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`playing lotto type games. Therefore, the wording merely describes the nature or
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`function of the identified goods."
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`16.
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`In late 2016, the Plaintiff Dent found two domain names listed online for
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`sale by their respective registrants which are directly descriptive of the Plaintiff's
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`business. The Plaintiff proceeded to purchase the domain name lottoworks.com for
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`company operations and lottostore.com for a direct lotto game storefront. The Plaintiff
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`purchased lottostore.com in September 2016 for $4820, and then purchased
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`lottoworks.com in December 2016 for $6500.
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`17. While Plaintiff prepared to launch its sites under the respective domain
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`names, Plaintiff chose to register the domain names with Godaddy LLC, an internet
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`domain name registrar located in this judicial district, pursuant to a registration contract
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`having a situs in this judicial district.
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`18.
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`The domain registration contract governing Plaintiff's registration of the
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`Domain Names with GoDaddy LLC incorporates a non-binding "Uniform Domain
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`Name Dispute Resolution Policy (UDRP)", under which a third party may request
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`transfer of rights under said contract to that third party on the basis of a claim of trade or
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`service mark rights. The UDRP is an administrative proceeding, which provides in
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`pertinent part:
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`“k. Availability of Court Proceedings. The mandatory administrative
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`proceeding requirements set forth in Paragraph 4 shall not prevent either
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 7 of 14
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`you or the complainant from submitting the dispute to a court of competent
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`jurisdiction for independent resolution before such mandatory
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`administrative proceeding is commenced or after such proceeding is
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`concluded. If an Administrative Panel decides that your domain name
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`registration should be canceled or transferred, we will wait ten (10) business days
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`(as observed in the location of our principal office) after we are informed by the
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`applicable Provider of the Administrative Panel's decision before implementing
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`that decision. We will then implement the decision unless we have received from
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`you during that ten (10) business day period official documentation (such as a
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`copy of a complaint, file-stamped by the clerk of the court) that you have
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`commenced a lawsuit against the complainant in a jurisdiction to which the
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`complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure.
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`(In general, that jurisdiction is either the location of our principal office or of
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`your address as shown in our Whois database. See Paragraphs 1 and 3(b)(xiii) of
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`the Rules of Procedure for details.) If we receive such documentation within the
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`ten (10) business day period, we will not implement the Administrative Panel's
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`decision, and we will take no further action, until we receive (i) evidence
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`satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to
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`us that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order
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`from such court dismissing your lawsuit or ordering that you do not have the
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`right to continue to use your domain name.” (Emphasis Added)
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`19. On or about December 14, 2016, in spite of the generic and descriptive
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`nature of the term Lotto, and in spite of the fact that the Plaintiff does not compete in
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`any way with Defendant, and does not (and given the nature of the mark and products,
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`could not) utilize the domain names in a way that might infringe upon any rights
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 8 of 14
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`Defendant might have, at nearly the same time the Plaintiff had purchased the
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`lottoworks.com domain name, the Defendant Lotto Sport proceeded to file a complaint
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`under the UDRP with the World Intellectual Property Organization.
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`20.
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`In the UDRP Complaint, Defendant Lotto Sport admitted to the
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`jurisdiction of this court as follows:
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`“IX. Mutual Jurisdiction
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`(Rules, para. 3(b)(xiii))
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`[15.]
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`In accordance with Paragraph 3(b)(xiii) of the Rules, the Complainant
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`will submit, with respect to any challenges that may be made by the Respondent
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`to a decision by the Administrative Panel to transfer the domain name that is the
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`subject of this Complaint, to the jurisdiction of the courts at the location of the
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`principal office of the concerned registrar”
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`21.
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`In the UDRP Complaint, the Defendant Lotto Sport represented itself to
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`be an "Italian clothing company" with various foreign trademark claims to "LOTTO"
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`for clothing.
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`22. Notwithstanding the fact that Plaintiff Dent had purchased the domain
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`names mere weeks and days before Defendant Lotto Sport proceeded with its
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`Complaint, and notwithstanding the considerable development effort in which Plaintiff
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`was engaged, the Defendant Lotto Sport alleged that the fact that Plaintiff Dent had not
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`immediately deployed websites for the domain names was demonstrative of "bad faith"
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`intent predicated on the Lotto Sport’s asserted foreign trademark claims.
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`23.
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`Plaintiff had never heard of the Defendant Lotto Sport prior to notice of
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`the UDRP filing, and did not know of the Defendant's UDRP Complaint until
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 9 of 14
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`discovering that GoDaddy LLC had disabled the Plaintiff's access to and control of the
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`Domain Names. Within days after assuming control of the lottoworks.com domain
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`name, Plaintiff attempted to de-activate the domain name from directing to the
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`"parking" website to which the previous registrant had directed the domain name. The
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`Plaintiff was unable to de-activate the previous registrant's configuration of the domain
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`name, because GoDaddy LLC had locked the domain name in response to receipt of the
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`Defendant's UDRP Complaint. The Plaintiff has been unable to exercise control over
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`the domain name as a result of the Defendant's action.
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`24. On February 21, 2017, the World Intellectual Property Organization
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`notified the parties and GoDaddy LLC of a decision issued by a Hong Kong attorney
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`ordering transfer of the domain names to the Defendant.
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`25. Under the UDRP, GoDaddy LLC will transfer Plaintiff’s Domain Names
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`to the Defendant Lotto Sport unless legal action for independent determination of the
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`Plaintiff's rights is commenced by Plaintiff in this judicial district, as designated under
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`the registration contracts for the domain names by GoDaddy LLC and as agreed to in
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`the "Mutual Jurisdiction" provision to which the Defendant has expressly admitted to be
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`subject.
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`26. On information and belief, the Defendant possesses no common law trade
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`or service mark rights and no rights under the Lanham Act in connection with the
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`conduct of lotto gambling operations.
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`27.
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`The Plaintiff does not manufacture, produce or sell clothing of any kind.
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`FIRST CLAIM FOR RELIEF
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`(REVERSE DOMAIN HI-JACKING)
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`[15 U.S.C. 1114(2)(D)(IV)-(V)]
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 10 of 14
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`28.
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`Plaintiff incorporates the allegations set forth in paragraphs 1 through 27
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`above.
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`29.
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`Plaintiff’s Domain Names have been locked, preventing Plaintiff from
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`exercising the full enjoyment of the benefits of registration thereof as a consequence of
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`false statements made by Defendant in a dispute policy proceeding (the UDRP)
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`followed by the domain registrar GoDaddy LLC. The Domain Names have been
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`ordered transferred, and will be transferred to Defendant but for this Action.
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`30.
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`Plaintiff has provided Defendant with notice of this Action.
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`31.
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`Plaintiff has incurred costs in seeking to prevent transfer of the Domain
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`Names as a consequence of Defendant's false statements.
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`32.
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`Plaintiff's registration and/or use of the Domain Names do not violate any
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`cognizable right of the Defendant under the Lanham Act.
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`SECOND CLAIM FOR RELIEF
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`(DECLARATORY RELIEF - NON VIOLATION OF LANHAM ACT)
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`[28 U.S.C. § 2201]
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`33.
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`Plaintiff incorporates the allegations set forth in paragraphs 1 through 32
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`above.
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`34.
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`Plaintiff's registration and/or use of the Domain Names does not violate
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`Defendant's rights under the Lanham Act. In registering the Domain Name, Plaintff did
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`not have "bad faith intent," as provided in 15 U.S.C. 1125(d)(1)(A)(i), to profit from
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`Defendant's alleged trademark. At the time Plaintiff registered the Domain Names and
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`at all times subsequent, the Plaintiff has intended to use the domain names for
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`legitimate purposes, including in conjunction with the conducting of lotto games, and
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 11 of 14
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`has invested substantial resources beyond the $11,500 paid out of pocket for the domain
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`names.
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`35.
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`Plaintiff had reasonable grounds to believe that its registration and/or use
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`of the Domain Names was a fair use or otherwise lawful use, as provided in 15 U.S.C.
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`1125(d)(1)(B)(ii) in accordance with the directly descriptive meanings of "lotto",
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`"works" and "store". Plaintiff had received legal counsel that pursuing trademark
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`registration corresponding to the domain names would be a fruitless exercise on the
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`grounds that the terms at issue were entirely descriptive of the Plaintiff's intended use.
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`36. On information and belief, Defendant had not engaged in interstate
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`commerce in the United States of America in connection with the manufacture, sale, or
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`transportation of any goods or services relating to the conduct of lotto games and
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`denominated “LOTTO STORE” or "LOTTO WORKS", or any colorable variation
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`thereof, at the time the Domain Names were registered by Plaintiff, and subsequent to
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`that time.
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`37.
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`Plaintiff reasonably believes its registration and use of the Domain Names
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`was and is lawful under the Lanham Act.
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`38.
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`There is an actual controversy with respect to whether the Defendant is
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`entitled to transfer of the Domain Name based on Defendant's rights under the Lanham
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`Act.
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`39.
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`In the absence of a declaration from the Court, GoDaddy LLC will
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`transfer the Domain Name to the control of Defendant, and Plaintiff will suffer
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`immediate and irreparable harm.
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`40.
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`Plaintiff s registration and use of the Domain Names does not, and is not
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`likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 12 of 14
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`connection or association of Plaintiff with Defendant, or as to the origin, sponsorship, or
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`approval of Plaintiff's goods, services, or commercial activities by Defendant.
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`41.
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`Plaintiff’s registration and use of the Domain Names do not misrepresent
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`the nature, characteristics, qualities, or geographic origin of Plaintiff s or Defendant's
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`goods, services, or commercial activities.
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`42.
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`Plaintiff's domain names are directly descriptive and/or generic to the
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`Plaintiff's activities in connection with the conduct of lotto games.
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`THIRD CLAIM FOR RELIEF
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`(TORTIOUS INTERFERENCE)
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`43.
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`Plaintiff incorporates the allegations set forth in paragraphs 1 through 42
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`above.
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`44. Knowing its allegations were not "complete and accurate", Defendant
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`certified otherwise in its UDRP complaint, and claimed that the Plaintiff had "registered
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`and used [the domain names] in bad faith" relative to the Defendant's asserted foreign
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`rights for marks for clothing. Defendant did so for the purpose of depriving the Plaintiff
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`of its rights under the domain registration contract.
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`45. Defendant’s misrepresentations in the UDRP Complaint were made for
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`the purpose of inducing a mis-application of the dispute policy of Plaintiff’s domain
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`registration contract, to cause breach thereof in that the UDRP panel was misled, and
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`the UDRP was mis-interpreted and mis-applied in the course of the UDRP Proceeding.
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`46. Defendant's misrepresentation of Plaintiff's intent in registering the
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`domain names were made for the purpose of depriving Plaintiff of the benefit of
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`Plaintiff's registration contracts with GoDaddy LLC, and transferring such benefits to
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 13 of 14
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`DEMAND FOR JURY TRIAL
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`47.
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`Pursuant to Fed. R. Civ. P. 38(b), Plaintiff Dent hereby demands a trial by
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`jury for all issues triable of right by a jury.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff Dent demands judgment against Defendant Lotto Sport
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`as follows:
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`1.
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`Declaration by the Court, pursuant to 28 U.S.C. §2201, that plaintiff’s
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`registration, ownership and use of the Domain Names <lottostore.com> and
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`<lottoworks.com> is lawful and proper and does not infringe on any right the Defendant
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`may claim in the United States;
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`2.
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` A Judgment that Defendant has attempted unlawfully to interfere with
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`Plaintiff’s rights and expectations under its domain name registration contract and has
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`induced a breach thereof by making false statements resulting in mis-application of the
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`dispute policy embodied therein;
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`3.
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`Cost and expenses, including costs under 15 U.S.C. 1114(2)(D)(iv)-(v)
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`and reasonable attorneys’ fees;
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`4.
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`As this is an action "involving a violation of 15 USC 1125(d)(1)" by way
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`of determining that no such violation in fact has occurred, "an award of statutory
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`damages in the amount of not less than $1,000 and not more than $100,000 per domain
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`name, as the court considers just" as provided under 15 USC 1117(d); and
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`5.
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`For such other and further relief as this Court deems just and proper.
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`Case 2:17-cv-00651-DMF Document 1 Filed 03/03/17 Page 14 of 14
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`DATED this 3rd day of March, 2017.
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`SCHMEISER, OLSEN & WATTS LLP
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`By:
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`/Jeffrey W. Johnson /
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`Sean K. Enos
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`Jeffrey W. Johnson
`SCHMEISER, OLSEN & WATTS, LLP
`18 E. University Drive, Suite 101
`Mesa, Arizona 85201
`Attorneys for Plaintiff
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