WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Deutsche Lufthansa AG v. Jin Wang Huh
Case No. D2001-1226
1. The Parties
The Complainant is Deutsche Lufthansa Aktiengesellschaft, a German corporation of Von-Gablenz-Str. 2-6, D-50679 Köln, Germany, represented by Dr Andrea Jaeger-Lenz, Latham & Watkins Schön Nolte, Warburgstraße 50, D-20354 Hamburg, Germany.
The Respondent is Jin Wang Huh, of 164-5 Sincheon-3 Dong, Dong-gu, Daegu, Republic of Korea. Respondent is not represented.
2. The Domain Name and Registrar
The domain name with which this dispute is concerned is <lufthansa.net> ("the Domain Name").
The Registrar with which the domain name is currently registered is The Registry at Info Avenue, PO Box 1897, Fort Mill, SC 29716, United States of America.
3. Procedural History
3.1 The Complaint was filed electronically on October 9, 2001, and in hard copy on October 18, 2001, at the WIPO Arbitration and Mediation Center (the "WIPO Center").
3.2 On October 10, 2001, the WIPO Center requested verification of the domain name details from the Registrar and on October 23, 2001, the Registrar verified:
(i) that a copy of the Complaint had been served on it by Complainant;
(ii) that the domain name is registered with it;
(iii) that the current registrant of the domain name is Respondent;
(iv) that the domain name is currently in "Registrar Lock" status;
(v) that under the Registrar's Registration Agreement the Policy applies to this dispute. The language of the Agreement is English.
(vi) the contact details for the Billing Contact, the Administrative Contact and the Technical Contact for the domain name.
3.3 On October 24, 2001, all formal requirements for the establishment of the Complaint were found by the WIPO Center to be in compliance with the applicable ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), and the ICANN Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules").
3.4 On October 24, 2001, the WIPO Center sent the Notification of Complaint and Commencement of Administrative Proceeding by courier, to the address shown in the Registrar's Verification, and by e-mail to Respondent, the Administrative Contact, the Billing Contact and the Technical Contact and by e-mail to the postmaster at the domain name. No facsimile address was available. Copies of the Notification were also sent by e-mail to ICANN and the Registrar.
3.5 It appears from the record that the e-mail transmission to the postmaster at the domain name was undelivered. The facsimile transmission to Respondent (at whose address the Administrative and Billing Contacts are located) was delivered. The courier delivery was returned undelivered with advice that the address was incorrect.
3.6 Paragraph 2(a) of the Rules provides that it is the provider's responsibility to employ reasonably available means calculated to achieve actual notice to the Respondent. The paragraph further provides that this responsibility is discharged by sending the Complaint to each of the addresses shown in the Registrar's WHOIS database for the domain name holder and the Technical and Administrative Contact, and the address supplied for the Billing Contact and by sending the Complaint in electronic form to the respective e-mail addresses, to the postmaster at the domain name and to any address on an active web page to which the domain name resolves and to any other address notified to the sender by Respondent or provided by Complainant. The Panel is of the opinion that in the light of the information available to it, WIPO has employed all means reasonably available to it to achieve notice to Respondent and that Respondent received at least the e-mail delivery of the Complaint.
3.7 The Administrative Proceeding commenced on October 24, 2001, and under paragraph 5(a) of the Rules, the Response was due on November 13, 2001.
3.8 No Response was filed, and on November 16, 2001, WIPO Center sent Notification of Respondent Default by e-mail to Respondent and to the Administrative, Billing and Technical Contacts.
3.9 Panelist Desmond Ryan, having filed a Statement of Acceptance and Declaration of Impartiality and Independence, the Panel was appointed on November 28. The language of the Proceeding is English.
4. Factual Background
4.1 Complainant is a large and very well known airline based in Germany and tracing its origins back to 1926. It has a large staff, and services approximately 350 destinations in 94 countries with a fleet of about 375 aircraft. It is a member of the Star Alliance Network flying to almost all countries of the world including Korea. In addition to its passenger and cargo services it provides aviation-related services such as catering, maintenance, overhaul, travel-related technology and tourism services. It operates an extensive website from the domain name <lufthansa.com> and several other domain names incorporating the word "lufthansa". It also is the registered proprietor of a large number of trademarks consisting of, or including the word "lufthansa" in many countries of the world. Complainant has provided evidence of these facts in Annexes 3 and 4 to the Complaint.
4.2 No information is known about Respondent.
4.3 The domain name does not resolve to an active website.
5. Parties Contentions
5.1 Complainant's contentions may be summarised as follows:
(i) Complainant's trademark is well and widely known throughout the world and is easily recognisable as such. The domain name is identical to Complainant's trademark.
(ii) Respondent is not in any way related to Complainant's business, is not an agent of Complainant and does not carry out any activity for, or have any business with Complainant. Respondent has no legitimate right or interest in ownership or use of the domain name and the domain name does not resolve to any website from which any legitimate right or interest can be inferred.
(iii) Respondent has registered the domain name in bad faith. There is no plausible circumstances in which Respondent could have registered the domain name in good faith, and there is no demonstrable use or preparation for use in connection with the bona fide offering of goods or services. Complainant further contends that Respondent's "passive holding" of the domain name constitutes use in bad faith and that the domain name has already been the subject of illegitimate trading. Complainant refers to the decision Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055, where reference is made to a domain name as an example of registrations by a recognised domain hijacker. Complainant speculates that Respondent appears to have obtained the domain name from Peikang.
5.2 No Response has been filed.
6. Applicable Dispute
6.1 This dispute is one to which the Policy applies. By registering the domain name, Respondent accepts the dispute resolution Policy adopted by the Registrar. The Registrar's current policy set out in its domain name registration agreement is the Policy.
6.2 To succeed in its Complaint, Complainant must show that each of the conditions of Paragraph 4(a) of the Policy are satisfied, namely that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
7. Discussion and Findings
Identical or Confusingly Similar Trademarks
7.1 The domain name consists of the word "lufthansa" with the addition of the domain indicator <.net>. Complainant has overwhelmingly demonstrated rights in the trademark "Lufthansa". The Panel therefore finds that the domain name is identical to a trademark in which Complainant has rights.
Right or Legitimate Interest
7.2 The burden of proof in showing that each of the elements required by paragraph 4(a) of the Policy at present rests with Complainant. The burden of proof is, however, a shifting one and Complainant has established, on the facts, a clear prima facie case of Respondent's absence of such legitimate right or interest. Respondent has failed to rebut that prima facie showing.
The Panel therefore finds that Complainant has discharged the burden of establishing that Respondent has no legitimate right or interest in the domain name.
Use and Registration in Bad Faith
7.3 Complainant has clearly established its use and extensive reputation in the "Lufthansa" trademark. It is inconceivable that those rights and reputation would not be known to the registrant of the domain name, either at the time of its first registration (apparently by Peikang) or at the time of its current registration by Respondent. The prime facie case thus raised by Complainant has not been rebutted by Respondent, and the Panel accordingly finds that the domain name was registered in bad faith.
Although Respondent has not made active use of the domain name in the sense of resolving it to an active website, its passive holding of the domain name may in itself be evidence of bad faith.
It has been pointed out in many panel decisions, including the case of Telstra Corporation Ltd v. Nuclear Marshmallows, WIPO Case No. D2000-0003, cited by Complainant, that inactive or passive holding of a domain name may evidence bad faith where Respondent can demonstrate no legitimate right or interest in a domain name which is confusingly similar to the well-known trademark of another. In this case, as in the Telstra Case, Respondent appears to have provided an incorrect or inoperative address.
It is difficult to ascribe any reason for the registration and holding of the domain name by Respondent, other than one arising out of one or other of the circumstances enumerated in paragraph 4(b) of the Policy. Furthermore, it is clear from the wording of paragraph 4(b), and has been so held in many prior cases, that the circumstances there enumerated are not exhaustive of the categories of bad faith. Inactive holding of a domain name, giving rise to the potential for its abusive use, is a clear example of "squatting" on the property of another, which the Policy is designed. The Panel respectfully adopts the words of the learned Panelist in Singapore Airlines Ltd. v. European Travel Network, WIPO Case D2000-0641, where he said:
"…..(the domain names) are so obviously connected with a well-known airline that their very use by someone with no connection with the airline suggests opportunistic bad faith. Indeed it is hard to imagine a more blatant exercise in "cybersquatting" "
The Panel therefore finds that the domain name is being used in bad faith.
8.1 The Panel decides and orders that:
(i) The domain name is confusingly similar to a trademark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in the domain name;
(iii) The domain name was registered and is being used in bad faith; and
(iv) The domain name shall be transferred to Complainant.
D. J. Ryan
Dated: December 11, 2001