WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Deutsche Lufthansa AG v. Admin of the Day, No Brains Media
Case No. D2011-1783
1. The Parties
The Complainant is Deutsche Lufthansa AG of Cologne, Germany, represented by Rauschhofer Rechtsanwälte, Germany.
The Respondent is Admin of the Day, No Brains Media of Kigali, Rwanda.
2. The Domain Name and Registrar
The disputed domain name <lufthannsa.com> is registered with 1st Antagus Internet GmbH.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 19, 2011. On October 20, 2011, the Center transmitted by email to 1st Antagus Internet GmbH a request for registrar verification in connection with the disputed domain name. On October 21, 2011, 1st Antagus Internet GmbH 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 October 27, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 20, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 21, 2011.
The Center appointed Marilena Comanescu as the sole panelist in this matter on November 30, 2011. 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 language of the proceeding is English.
4. Factual Background
The Complainant is one of the leading airlines with a history dating back in 1926, carrying over 50 million passengers per year in more than 90 countries. Since 1990, the Complainant is a member of Star Alliance Network of airlines which is operating in almost all countries of the world.
In addition to its passenger and cargo services the Complainant provides aviation-related services such as catering, maintenance, overhaul, travel related technology and tourism services.
The Complainant operates an extensive website from the domain name <lufthansa.com>, which is related to its many other websites including the word “lufthansa”.
The Complainant owns numerous trademark registrations for, or including the word “Lufthansa” worldwide, such as the International Registrations for the word mark LUFTHANSA no. 450006 since 1979 and no. 722971 since 1999. The trademarks are registered for transportation services, incentive award programs and other services such as hotels, rental cars, credit cards, clothing.
Previous UDRP panels have already established that the Complainant’s trademark LUFTHANSA enjoys a substantial reputation and fame in many jurisdictions throughout the world. See also Deutsche Lufthansa AG v. Jin Wang Huh, WIPO Case No. D2001-1226; Deutsche Lufthansa AG v. Kudakwashe Musunga / PrivacyProtect.org, WIPO Case No. D2009-1754.
According to the available WhoIs information, the disputed domain name was “created” on March 9, 2008.
5. Parties’ Contentions
The Complainant avers that each of the three elements specified in paragraph 4(a) of the Policy are given in the present case, as follows:
(i) The disputed domain name <lufthannsa.com> is confusingly similar to its trademark LUFTHANSA:
The disputed domain name is confusingly similar to the Complainant’s trademark as it includes it nearly in its entirety; the only difference is the insertion of the second letter “n” which is irrelevant for the present analysis, such an obvious typographical and phonetically identical misspelling being a typical case of typosquatting.
The goods and services claimed by the trademark registrations and the content of the website related to the disputed domain name are irrelevant. The disputed domain name is linked to the website <lufthannsa.com> which contains information about travel, hotel reservation and sponsored links concerning this topic.
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name:
In the present case there is no evidence that the Respondent is using the disputed domain name in connection to a bona fide offering of goods and services. At the time of filing of the Complaint the Respondent was using the disputed domain name in connection to a website displaying sponsored links containing information about travel, hotel reservations, thus capturing and redirecting the Internet users searching for the Complainant’s website to a commercial website unrelated to the Complainant. It is presumed that the Respondent receives click-through revenues in exchange for diverting Internet users to such websites.
The Complainant is the exclusive proprietor of the trademark LUFTHANSA and is not aware of any trademark application for the word “Lufthansa” or a similar word made by the Respondent or any other third party. There is no connection between the Complainant and the Respondent. Furthermore, the Complainant has not granted the Respondent any license, permission, authorization or other consent to use LUFTHANSA or a similar term in the disputed domain name.
(iii) The disputed domain name was registered and is being used in bad faith:
The Complainant’s trademark is well-known and highly distinctive and it is inconceivable that the Respondent did not have actual notice of the Complainant’s trademark rights at the moment of registering the disputed domain name.
The Respondent registered the disputed domain name in 2008, almost 30 years after the earliest registration of the trademark LUFTHANSA and it is using it in relation to a commercial website providing sponsored links in relation to travel and aviation business. It defies common sense to believe that the Respondent chose exactly this name and it is using it in relation to identical activities; therefore, it is most likely that the Respondent was aware of the Complainant’s trademarks and company name. The Respondent’s intention is to free-ride on the fame of the LUFTHANSA trademarks and to capitalize the goodwill of the Complainant.
The disputed domain name is designed to attract Internet users who are looking for the Complainant’s website, cause confusion with the Complainant’s famous trademarks, disrupt the Complainant’s business by diverting consumers away from the Complainant’s website and do all these for commercial gain as the Respondent profits from the revenue generated by this website.
Furthermore, the Respondent did not respond to the Complainant’s letter sent prior to commencing these procedures and thus did not claim, nor prove a legitimate basis to register and use the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the policy, these rules and any rules and principles of law that it deems applicable.”
In accordance with paragraph 4(a) of the Policy, the Complainant must prove to the Panel that the following three circumstances are cumulatively met in order to obtain the transfer of the disputed domain name:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent does not have rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used by the respondent in bad faith.
Consequently, the Panel shall further analyse the eventual concurrence of the above-mentioned circumstances in the present case.
A. Identical or Confusingly Similar
There are two requirements that a complainant must establish under this element, namely: that it has rights in a trademark, and, if so, that the disputed domain name is identical or confusingly similar to its mark.
The Complainant’s trademark is LUFTHANSA and Complainant’s main website operates under the domain name <lufthansa.com>. The disputed domain name is <lufthannsa.com> and incorporates the Complainant’s distinctive trademark in its entirety with a misspelling, namely the addition of a second letter “n”. The Panel agrees this is a classical typosquatting case and such addition does not assist the Respondent in escaping a finding of confusing similarity. See also Louis Vuitton v. Net-Promotion, WIPO Case No. D2000-0430; Dow Jones & Company, Inc. and Dow Jones LP v. John Zuccarini, WIPO Case No. D2000-0578.
The elements “www.” and “.com” may be considered as irrelevant for the similarity analysis in the sense of the Policy and have no distinguishing capacity in the context of assessing the identity or the confusing similarity of a disputed domain name. See also Reuters Limited v. Global Net 2000 Inc, WIPO Case No. D2000-0441.
Accordingly, the Panel finds that the first element of the Policy is established, and the Complainant has proven that the disputed domain name is confusingly similar to the trademark in which the Complainant has rights, pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Complainant has provided a prima facie case under this element of the Policy showing that it has had no relationship with the Respondent and has not granted the Respondent any right to register and use its trademark. Therefore, the burden of production on this element shifts to the Respondent to demonstrate its rights or legitimate interests in the disputed domain name.
In this case the Respondent has not put forward any circumstances indicating its rights or legitimate interest in connection to the disputed domain name; the Respondent failed to submit any response both in the present procedure and to the Complainant’s letter sent prior to commencing this procedure. The silence of the Respondent may support a finding, based on other relevant circumstances, that it has no rights or legitimate interests in respect of the disputed domain name. See also Alcoholics Anonymous World Services, Inc. v. Lauren Raymond, WIPO Case No. D2000-0007; Ronson Plc v. Unimetal Sanayi ve Tic.A.S., WIPO Case No. D2000-0011.
Further, there is no evidence before the Panel to suggest that the Respondent has made a bona fide use of the disputed domain name, or has been known by the disputed domain name, or is making any legitimate noncommercial or fair use of the disputed domain name. To the contrary, the disputed domain name containing the Complainant’s well-known trademark in the airlines and related services industry is connected to a website offering sponsored links, most of these related to such activities.
The pay-per-click (PPC) websites would not normally fall within the bona fide use principles where such websites seek to take unfair advantage of the value of a trademark.
For all these reasons, the Panel finds that the second element of the Policy is established and the Respondent has no rights or legitimate interests in respect of the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Under the third element of the Policy and given the circumstances of the present case, it is not relevant where the Complainant’s trademarks are actually registered and where the apparent location of the Respondent is, mainly because: (i) the trademark LUFTHANSA is famous worldwide and the Complainant holds trademark registrations in many countries; (ii) the Complainant operates under this mark in more than 90 countries all over the world; (iii) the Respondent’s contact address as registered in the WhoIs database was not confirmed as being the accurate one and (iv) websites are accessible worldwide via the Internet.
The Complainant’s trademark LUFTHANSA is distinctive and enjoys the status of a well-known trademark in relation to airline activities and it has been used for decades in many countries worldwide. The disputed domain name <lufthannsa.com> was presumably registered in March 2008 and contains the Complainant’s trademark in its entirety with a minor typographical error.
For these reasons, the Panel concludes that the Respondent must have had actual knowledge of the Complainant’s trademark when the disputed domain name was registered.
Further, the Respondent is using the Complainant’s trademark for a web portal, the classic method to generate financial gain via the pay-per-click or click-through device, whereby the operators of other websites pay a commission to the Respondent for traffic redirected to them.
Paragraph 4(b)(iv) of the Policy sets out non-exclusive criteria which shall be evidence of the registration and use of the disputed domain name in bad faith including circumstances where, by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location.
Given the awareness of the LUFTHANSA brand worldwide, indeed, an Internet user accessing the website corresponding to the disputed domain name <lufthannsa.com> and on which webpage are listed links providing services in connection with the Complainant’s activities may be confused and believe that it is a website held, controlled by the Complainant, or somehow affiliated or related to it. In this way, the Respondent is obtaining commercial gain by diverting Internet users searching for the Complainant and thus, is also disrupting the business of the Complainant.
The Respondent chose not to participate in these proceedings and has not contested any of the allegations made by the Complainant, and did not provide any evidence whatsoever of any legitimate noncommercial, or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or tarnish the Complainant’s trademark and therefore reinforces this approach. See also Kabushiki Kaisha Toshiba v. Shan Computers, WIPO Case No. D2000-0325; Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787.
Moreover, the hard copy transmittals of these proceedings (Written Notice) could not be delivered to the Respondent as the address was incomplete and thus, along with the rest of the evidence before the Panel, may be inferred that the Respondent’s intention was to conceal its true identity and therefore represents another evidence of bad faith registration and use of the disputed domain name.
For all these reasons, the Panel finds that the third element of the Policy is established on the record in these proceedings, and accordingly that the disputed domain name was registered and is being used in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <lufthannsa.com> be transferred to the Complainant.
Dated: December 12, 2011