Complainant is Deutsche Lufthansa AG, of Frankfurt, Germany, represented by Rauschhofer Rechtsanwälte, of Germany.
Respondent is Nadeem Qadir, of Dhaka, Bangladesh.
The disputed domain names <lufthansaairlines.com> and <lufthanza.com> are registered with eNom, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 6, 2009. On January 6, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain names. On January 6, 2009, eNom transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on January 14, 2009. In accordance with the Rules, paragraph 5(a), the due date for the response was February 3, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on February 4, 2009.
The Center appointed Bradley A. Slutsky as the sole panelist in this matter on February 10, 2009. 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.
Complainant operates the Lufthansa airline based in Germany and has registrations for the trademark LUFTHANSA in several countries around the world, dating back at least as early as 1979. Respondent registered the disputed domain names, <lufthansaairlines.com> and <lufthanza.com>, in July and August, 2001. Complainant attached webpage printouts to its Complaint which show that Respondent's domain names forward to “www.usseek.com” web pages that contain Google AdWords pay-per-click advertisements, some of which lead to transportation websites that compete with Complainant's own websites. Complainant wrote to Respondent on August 26, 2008 and demanded that Respondent “disconnect” the websites at the disputed domain names and pay Complainant's attorneys' fees. Complainant asserts that Respondent did not respond to this letter.
Complainant asserts that it has trademark rights in the LUFTHANSA mark, that the disputed domain names are confusingly similar to this trademark; that the <lufthanza.com> domain name “is a typical case of ‘typo-squatting'”; that Respondent is not licensed to use Complainant's trademark; that the use of the trademark for competitive sponsored links or pay-per-click links is not a legitimate non-commercial or fair use; that Respondent has had at least five similar UDRP proceedings brought against him and has lost all of those proceedings, and that Respondent is the registrant for more than 560 other domains.
Respondent did not reply to Complainant's contentions.
Pursuant to paragraph 15 of the Rules, panelists in UDRP proceedings “shall 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 [they] deem applicable”.
Under paragraph 4(a) of the Policy, Complainant must prove the following:
(i) Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) Respondent's domain name has been registered and is being used in bad faith.
Under paragraph 4(a)(i) of the Policy the Complainant must show that the disputed domain name is “identical or confusingly similar to a trademark or service mark in which the complainant has rights”.
The registration certificates attached to the Complaint demonstrate that Complainant has rights in the mark LUFTHANSA.
The <lufthanza.com> domain name looks and sounds nearly identical to Complainant's LUFTHANSA trademark other than the “.com” at the end. The use of a “z” in place of the “s” in “Lufthansa” indicates an intent to “typosquat”, because the letters look and sound very similar and are very close together on a QWERTY keyboard, and “lufthanza” does not appear to be a word (the Panel did not find it in the dictionary, Complainant alleges it is not a word, and Respondent does not dispute Complainant's allegation). The “.com” also does not distinguish the domain name but rather is a mandatory addition for a domain name in the “.com” gTLD. United Consumers Club, Inc. v. Texas International Property Associates, WIPO Case No. D2007-0987. Similarly, the addition, in <lufthansaairlines.com>, of “airlines” and the “.com” gTLD after Complainant's trademark do not adequately distinguish that domain name from Complainant's trademark. The addition of a generic word following a trademark does not dispel confusing similarity. Indeed, where, as here, the generic word describes the goods or services of the Complainant, its addition contributes to the confusion. Hoffmann-La Roche Inc. v. Kevin Chang, WIPO Case No. D2008-1344.
Accordingly, the Panel finds that the disputed domain names are confusingly similar to a trademark or service mark in which Complainant has rights, and that Rule 4(a)(i) is satisfied.
The Complainant also must demonstrate that the Respondent has “no rights or legitimate interests in respect of the domain name”. Paragraph 4(a)(ii) of the Policy. “Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [the Respondent's] rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to [Respondent] of the dispute, [Respondent's] use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) [Respondent] (as an individual, business, or other organization) ha[s] been commonly known by the domain name, even if [Respondent has] acquired no trademark or service mark rights; or
(iii) [Respondent is] making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
Policy, paragraph 4 (c).
There is no evidence that Respondent has been commonly known as “lufthanza.com” or “lufthansaarilines.com”. Further, the submissions show that Respondent is using the disputed domain names for pay-per-click links that compete with Complainant's own services. “The use of a domain name (that is identical or confusingly similar to a trademark) as a parking page that generates click through revenue typically does not give rise to rights or legitimate interests.” MAACO Enterprises, Inc. v. IP Admin / DNAV ASSOCS, WIPO Case No. D2008-0009. Further, the sale of competitive products using the Complainant's trademark typically is not considered “bona fide” or “legitimate” or “fair” for purposes of paragraph 4(a)(ii). LTD Commodities, LLC v. Nadeem Qadir, NAF Claim No. FA0601000636445; Interstate National Dealer Services, Inc. v. Selwyn Colley, WIPO Case No. D2003-0934.
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain names, and that paragraph 4(a)(ii) of the Policy is satisfied.
Complainant also bears the burden of establishing that the “domain name has been registered and is being used in bad faith”. Policy, paragraph 4(a)(iii). As set forth in the Policy, paragraph 4(b):
“[T]he following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that [the Respondent has] registered or [the Respondent has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name; or
(ii) [Respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent has] engaged in a pattern of such conduct; or
(iii) [Respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, [Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location.”
Respondent previously has been found to have registered and used at least five trademarks of others in bad faith. See TPI HOLDINGS, INC. v. Nadeem Qadir, WIPO Case No. D2008-1398; Specialized Bicycle Components, Inc. v. Nadeem Qadir, supra; LTD Commodities, LLC v. Nadeem Qadir, supra; Symantec Corporation v. Nadeem Qadir, WIPO Case No. D2005-1193; PHE, Inc. v. Nadeem Qadir, WIPO Case No. D2005-1315. In addition, Complainant has presented evidence (and Respondent has not rebutted) that Respondent is the registrant for more than 560 other domain names, and that Respondent's e-mail address is associated with more than 1,530 domain names. In light of these facts and in light of Respondent's use of two domain names in this proceeding that appear to be designed to attract users looking for Complainant, the Panel concludes that Respondent has engaged in bad faith registration and use under paragraph 4(b)(ii) of the Policy.
In addition, the HTML code for the website at each of the disputed domain names reads as follows:
<META HTTP-EQUIV=“refresh” CONTENT=“0; URL=http://www.ownbox.com/treasure/lufthansa.html”>
The redirection to “lufthansa.html” indicates that Respondent himself is associating the disputed domain names with the mark LUFTHANSA. The “http://www.ownbox.com/treasure/lufthansa.html” page, in turn, contains the title “Lufthansa Airlines Travel Deals: Airline tickets Discount Hotels and Car Rental Travel” and, in white text on a white background, states (among many other travel terms) “Lufthansa Airlines Travel Deals Airfares: cheap tickets, plane tickets, priceline ticket air”. This page in turn redirects users to “http://usseek.com/geot/cruises”, which is the page with sponsored pay-per-click travel links. This extensive use of Complainant's trademark to lead users to Complainant's sites with pay-per-click links constitutes bad faith under paragraphs 4(b)(iii) and (iv) of the Policy. TPI HOLDINGS, INC. v. Nadeem Qadir, supra; Specialized Bicycle Components, Inc. v. Nadeem Qadir, supra; LTD Commodities, LLC v. Nadeem Qadir, supra; PHE, Inc. v. Nadeem Qadir, supra; MAACO Enterprises, Inc. v. IP Admin / DNAV ASSOCS, supra; Hoffmann-LaRoche Inc. v. sasha rutova, WIPO Case No. D2008-0746.
Respondent's typosquatting “is further evidence of bad faith registration and use under Policy 4(a)(iii).” LTD Commodities, LLC v. Nadeem Qadir, supra. See also TPI HOLDINGS, INC. v. Nadeem Qadir, supra; Specialized Bicycle Components, Inc. v. Nadeem Qadir, supra; Symantec Corporation v. Nadeem Qadir, supra.
Similarly, this Panel is satisfied that the use of Complainant's trademark in white text on a white background – which typically is done to cause search engines to rank the page based on the terms in the white text, while hiding the text from end users – is additional evidence of bad faith. Audiotech Systems Ltd. v. Videotech Systems Ltd., WIPO Case No. D2008-0431.
Accordingly, the Panel finds that the disputed domains names have been registered and are being used in bad faith, and that paragraph 4(a)(iii) of the Policy is satisfied.
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 names, <lufthansaairlines.com> and <lufthanza.com>, be transferred to the Complainant.
Bradley A. Slutsky
Dated: February 24, 2009