WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

L'TUR Tourismus AG v. Lee Wongi

Case No. D2003-0194

 

1. The Parties

1.1. The Complainant is L'TUR Tourismus AG, medien centrum, 76530 Baden-Baden of Germany, represented by Graefe & Partner of Germany.

1.2. The Respondent is Lee Wongi, Bomundong Sungbukgu, Seoul 136-085 of Republic of Korea.

 

2. The Domain Name and Registrar

The disputed domain name <ltour.com> is registered with OnlineNic, Inc. dba China-Channel.com.

 

3. Procedural History

3.1. The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 7, 2003. On March 7, 2003, the Center transmitted by email to OnlineNic, Inc. dba China-Channel.com a request for registrar verification in connection with the domain name at issue. On March 10, 2003, OnlineNic, Inc. dba China-Channel.com transmitted by email to the Center its verification response. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 17, 2003. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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").

3.2. 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 March 18, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was April 7, 2003. The Response was filed with the Center on April 5, 2003.

3.3. On April 14, 2003, the center received a supplemental filling by the Complainant by email and on April 16, 2003, received the hard copy of the same. The Panelist after having reviewed the case file and supplemental filing has decided not to acknowledge and accept the same, as it has no effects over the facts and circumstances of the present dispute.

3.4. The Center appointed Pravin Anand as the sole panelist in this matter on April 22, 2003. 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.

 

4. Factual Background

4.1. The Complainant is the registrant of the trademark "lītur", registered in Germany at the German Patent and Trademark Office (DPMA) on September 18, 1996, with priority of July 25, 1996, registration number 396 32 495. The mark is registered for the services of travel agencies, including air travel; traffic service agencies, escorting of travelers. The trademark is also internationally registered for the countries Austria, Benelux, Czech Republic, France, Hungary, Italy, Poland, Portugal, Spain, Switzerland, Denmark, Finland, Sweden and United Kingdom with priority of the German registration, July 25, 1996. The trademark is internationally extended to the countries Bosnia-Herzegovina, Bulgaria, China, Croatia, Egypt, Kenya, Latvia, Liechtenstein, Morocco, Slovakia, Slovenia and Yugoslavia with Priority of May 23, 2000. The trademark is for services of travel agencies, particularly for air journeys and the services of transport agencies.

4.2. The Complainant is the registrant of a large number of domains containing the name "ltur" or words similar to "ltur". The Complainant is Europeís last-minute market leader with 130 own LīTUR shops in seven European Countries Ė Germany, France, Holland, Austria, Switzerland, Poland, Spain - and 663,000 holidays sold in the year 2001. The Complainant has been offering last-minute tours throughout the world since 1987. According to the official IVW statistics "www.ivw.de" the website "www.ltur.de" is Germanyís most popular travel site on the Internet.

 

5. Partiesí Contentions

A. Complainant

5.1. The Complainant contends that the disputed domain name is confusingly similar to the Trademark and Service mark in which the Complainant has rights. The Respondent chose the disputed domain name which is a misspelling of Complainantís well-known mark in an effort to attract internet users who would erroneously or mistakenly key in the misspelled version of the Complainantís mark.

5.2. The Complainant contends that the Respondent has no rights or legitimate interest in respect of the domain name <ltour.com>. The Respondent doesnít use the domain name in connection with any offering of bona fide goods or services. There is no relationship between the Complainant and the Respondent. The Respondent is not a licensee of the Complainant and no otherwise permission or consent has been provided to the Respondent to use the "lītur" mark or to apply for any domain name incorporating this mark.

5.3. Further the Complainant states that the Respondent is not commonly known by the disputed domain name and <ltour.com> was registered and is being used in bad faith. The only reason that the Respondent has registered the disputed domain name is to attract internet users to his sexually explicit website by causing a likelihood of confusion with the Complainant and to derive commercial gain from the website. Further when the Complainant tried to access the website at the disputed domain name a partially pornographic website with a message stating that the website was closed and the domain name was for sale was found. The Respondent was asked to cease and desist from maintaing and connecting the domain <ltour.com> and to transfer it to the Complainant vide a cease-and-desist-letter from December 2, 2002. This letter was sent to the Respondentís e-mail-address as shown in dotcomís Whois-database. A time limit for notifying the request of domain transfer was set for December 18, 2002. The Respondent did not give any response.

B. Respondent

5.4. The Respondent contends that the Respondent registered the disputed domain name on April 13, 2002, because it is a common word. <ltour.com> was created by combining Ďlí, the initial of ĎLeeí, which is the family name of the Respondent, and Ďtourí, which means cyber-tour, in order to provide users with services that enables them to use the Internet site conveniently.

5.5. The Respondent contends that linking the domain name to a pornographic website is not unlawful and that it is a mere coincidence that "etour.net" which was the domain name to which <ltour.com> was diverted to had links to the Complainantís competitor. The Respondent further states that it is impossible to draw a conclusion that the Respondent has illegally occupied or infringed on the Complainant Trademark or Service mark just because a website with an address of the disputed domain name contains an obscene picture or has a link to a competitor.

5.6. The Respondent contends that he had never offered the disputed domain name for sale loan or transfer to the Complainant.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

6.1. The Complainant is the owner of the trademark "lītur", registered in Germany at the German Patent and Trademark Office (DPMA) on September 18, 1996, with priority of July 25, 2000, registration number 396 32 495. The mark is registered for the services of travel agencies, including air travel; traffic service agencies, escorting of travelers. The trademark is also internationally registered in various countries like Austria, Benelux, Czech Republic, France, Hungary, Italy, Poland, Portugal, Spain, Switzerland, Denmark, Finland, Sweden and United Kingdom with priority of the German registration, i.e. July 25, 1996.

6.2. The Complainant is also the registrant of a large number of domain names containing the word "ltur" or words similar to "ltur". Therefore it is clear that the Complainant has rights in the mark "ltur". The domain name <ltour.com> is a mere misspelling of the Complainantís well-known mark and the Respondentís use of the misspelled version of the mark is an effort to attract internet users to the Respondent's website.

The only difference between the Complainantís Trademark and the Respondentís domain name is the addition of the letter "O" and this doesnít change the mark phonetically. The domain name is phonetically similar to the Trademark in which the Complainant has rights and hence confusingly similar.

B. Rights or Legitimate Interests

6.3. The Respondent seems to be a registrant from South Korea and from the facts presented to the Panel, doesnít seem to trade. On accessing <ltour.com> on October 31, 2002, the Complainant was taken to <etour.net> another site owned by the Respondent. This site had pornographic links as well as links to competitors of the Complainant.

6.4. Further there is no relationship between the Complainant and the Respondent, the Respondent is not a licensee of the Complainant and no permission or consent has been provided to the Respondent to use the "lītur" mark or to apply for any domain name incorporating this mark. The Respondent has neither denied the various trademark and domain name registrations mentioned by the Complainant nor has he denied the popularity of the Complainant. Thus under the circumstances the Panel finds that the Respondent has no right or legitimate interest in the domain name.

6.5. <ltour.com> is a non pronounceable word and is not suited for a domain name unless the Respondent had a particular reason for registering the said domain name. The Respondent in his response has not given any valid reasoning for registering the domain name and thus it is clear that he has no legitimate interest in the said domain name.

C. Registered and Used in Bad Faith

6.6. Offering the internet platform under the domain name <etour.net> with a link to the Complainantís competitor "expedia", Respondent must have known about the Complainantís mark while registering the disputed domain name. The link from the domain name <etour.net> to a pornographic website "18+Onlyxxxsite" under the disputed domain name shows Respondentís bad faith. The use of the domain name <ltour.com> for the link from "etour.net" to the pornographic website shows that the only plausible purpose for Respondentís registration and use of the disputed domain name is to attract, for commercial gain, internet users to sexually explicit websites, by creating a likelihood of confusion with the Complainantís mark as to the source, sponsorship, affiliation, or endorsement of Respondentís website. Respondentís registration of the disputed domain name that is simply a typographical error and/or misspelling of Complainantís mark is also an evidence of Respondentís bad faith.

6.7. On January 7, 2003, when the Complainant tried to access the website it was linked to a website at the domain name <superslots.com>. When the Complainant tried to close the window, a popup window opened at <carribeangold.com> and further attempts to close the pop up window led to a display of another partly pornographic website at the domain name <ltour.com>. On this site there also was a message that the said site had been closed and that the domain name was for sale. There is no relationship between the Complainant and the Respondent, the Respondent is not a licensee of the Complainant and no otherwise permission or consent has been provided to the Respondent to use the "lītur" mark or to apply for any domain name incorporating this mark.

6.8. The Respondent owns the domain name <etour.net> and there is no plausible reason for the Respondent to register <ltour.com> that is very similar to <etour.net>

6.9. Further the Respondent was asked to cease and desist from maintaing and connecting the domain <ltour.com> and to transfer it to the Complainant vide a cease-and-desist-letter from December 2, 2002. This letter was sent to the Respondentís e-mail-address as shown in dotcomís Whois-database. A time limit for notifying the request of domain transfer was set for December 18, 2002. The Respondent did not give any response. Therefore under the circumstances it is clear that the domain name has been registered and is being used in bad faith.

 

7. Decision

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 <ltour.com> be transferred to the Complainant.

 


 

Pravin Anand
Sole Panelist

Dated: May 2, 2003