The Complainant is Deutsche Lufthansa AG, Frankfurt, Germany, represented by Rauschhofer Rechtsanwälte, Germany.
The Respondent is George Aby, Euless, Texas, United States of America.
The disputed domain names <lufthansaagent.com> and <lufthansaticket.com> are registered with Omnis Network, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 19, 2009. On January 20, 2009, the Center transmitted by email to Omnis Network, LLC a request for registrar verification in connection with the disputed domain names. On January 29, 2009, Omnis Network, LLC 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 January 30, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was February 19, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 20, 2009.
The Center appointed Ross Wilson as the sole panelist in this matter on February 27, 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.
The Complainant is a German corporation operating an airline servicing 350 destinations in more than 90 countries. Each year it carries over 50 million passengers. In addition to its passenger and cargo services it provides aviation related services such as catering, maintenance, overhaul, travel related services and tourism services.
The Complainant is the proprietor of a large number of trademarks consisting of or including the word LUFTHANSA. The trademarks are registered in a number of countries including the United States of America. The earliest trademark was registered in 1979. The trademarks are registered for passenger and freight transportation and other goods and services such as games, clothing and jewellery.
The Complainant contends that the disputed domain names are confusingly similar to the trademark LUFTHANSA in which the Complainant has rights. It states that an Internet user viewing the disputed domain names' websites would likely assume that the websites or the operator are somehow sponsored by or affiliated with the Complainant or has at least the corresponding consent of the Complainant to use the disputed domain names. In the Complainant's view the term ‘agent' in <lufthansaagent.com> is an activity commonly associated with the Complainant or an authorised agency and is likely to increase rather than reduce confusion.
According to the Complainant there is no evidence that the Respondent used the disputed domain names in connection with a bona fide offering of goods and services. The Respondent uses one of the websites to publish its email address and the other to promote the sale of airline tickets including those of Lufthansa. Even if the Respondent had been authorised to sell Lufthansa tickets, the Complainant contends that this does not give the Respondent the right to use the Complainant's trademark in its domain names.
The Complainant advices that it has not licensed or otherwise permitted the Respondent to use its trademark as a domain name.
The Complainant contends that through the disputed domain name <lufthansaagent.com> the Respondent attempts to redirect Internet users to its own website since Internet users coming across the Respondent's email address will be curious about the website and type in the domain name associated with the email address ”www.skylinetravelusa.com”. That domain name website operated by the Respondent provides a search engine for searching and booking airline flights. Within the search engine the Internet user can choose between a variety of airlines including the airline of the Complainant. Therefore the Respondent is using the website for commercial purposes in a way that trades on the goodwill of the Complainant and its trademark. In the Complainant's view its trademark is being used by the Respondent to attract more traffic to its website.
The Complainant considers that through the disputed domain name <lufthansaticket.com> the Respondent is attempting to redirect Internet users to the website ”www.toindia.com” registered by the Respondent and qualified to be a platform to search and purchase tickets online. Again the Complainant contends that the Respondent is using the Complainant's trademark to attract more traffic to the Respondent's website “www.toindia.com” and generate additional revenue.
The Complainant contends that the Respondent uses both disputed domain names to directly or indirectly promote its own commercial services provided within the websites “www.skylinetravelusa.com” and “www.toindia.com”. For the Complainant there is a distinct danger of “bait and switch” tactics as the Respondent trades on the goodwill of the Complainant's trademark to attract Internet users, redirect them and then attempt to sell them related products and services.
The Complainant asserts that the Respondent is neither commonly known or was ever known by the disputed domain names nor has it any rights in them.
The Complainant contends that the Respondent has registered the disputed domain names in bad faith by intentionally attempting to attract for commercial gain Internet users to the Respondent's websites by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation or endorsement of the Respondent's websites. The Complainant supports its view by reference to the fact that the LUFTHANSA trademark is distinctive and has no meaning in any other language other than as a trademark identifying the Complainant as a source of origin. The Complainant notes that the Respondent uses the trademark LUFTHANSA in its websites and even the Lufthansa logo in its “www.lufthansaticket.com” website. Consequently, the Complainant argues that the Respondent had actual notice of the Complainant's trademark because if the Respondent had not known the Complainant it would not have chosen the words ‘agent' and ‘tickets', which are directly relevant to the Complainant's industry, to add to the word “Lufthansa”.
The Respondent did not reply to the Complainant's contentions.
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy, as follows:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Complainant provided considerable evidence that it has registered rights in the trademark LUFTHANSA.
Both disputed domain names <lufthansaagent.com> and <lufthansaticket.com> incorporate the Complainant's trademark in full with the simple descriptive addition of “agent” and “ticket”. It has been held in many previous cases that incorporating a trademark in its entirety is sufficient to establish that a domain name is identical or confusingly similar to a registered trademark (see The Stanley Works and Stanley Logistics Corp. v. Camp Creek Co. Inc., WIPO Case No. D2000-0113 and World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles, WIPO Case No. D2000-1306).
Also, numerous cases have recognised that the addition of descriptive words does not provide sufficient differentiation for a disputed domain name to be considered distinctive from the dominant element of a complainant's trademark. For example, Caterpillar Inc. v. Roam the Planet, Ltd., WIPO Case No. D2000-0275, General Motors Corporation and General Motors of Canada Limited v. Andre Rheaume, WIPO Case No. D2004-0664 and AirTran Holdings Inc. v. Forsyte Corporation, WIPO Case No. D2008-1169.
In view of the above, the Panel finds that the Complainant has proven that the disputed domain names are confusingly similar to the Complainant's trademark in which it has demonstrable rights. The Complainant therefore has satisfied the first element of the Policy.
Paragraph 4(c) of the Policy sets out how a respondent can demonstrate rights to or legitimate interests in a disputed domain name. In this case, the Respondent has chosen not to file any submission or evidence to demonstrate its rights or legitimate interests in the disputed domain names <lufthansaagent.com> and <lufthansaticket.com>. In this situation, paragraph 14(b) of the Rules allows the Panel, in the absence of exceptional circumstances, to draw such inferences from the absence of a Response from the Respondent as it considers appropriate.
The Complainant makes it clear that the Respondent is not a licensee of the Complainant.
Evidence has been provided by the Complainant showing a connection between the domain name <lufthansaagent.com> and a website owned by the Respondent which contains a search engine allowing Internet users to book tickets on airlines including the Complainant's airline. Further the Complainant provided evidence that the domain name <lufthansaticket.com> resolves to the Respondent's “www.toindia.com” website that displays the Complainant's trademark along with those of other airlines.
The Respondent has not been authorised by the Complainant to sell Lufthansa tickets or use its trademark. The Respondent was given the opportunity to assert a right or legitimate interest in the disputed domain names when the Complainant's representation corresponded with the Respondent on August 26, 2008 requesting the disconnection of the “www.lufthansaagent.com” website. Similarly, with respect to this dispute the Respondent failed to assert any rights.
For both disputed domain names the evidence provided by the Complainant demonstrates that the Respondent is redirecting Internet users to other sites to obtain some commercial gain. Redirecting Internet users to other websites by using a domain name that incorporates a well known trademark to a website unconnected to the trademark owner does not constitute bona fide offering of goods and services (see Madison Square Garden L.P., Radio City Trademarks, LLC v. Great Camanoe Investments Ltd / Belize Domain Names Whois Service Lt, WIPO Case No. D2007-0819 and Lance Armstrong Foundation v. Chris Angeles, WIPO Case No. D2005-0888).
Based on the above and without any available evidence of the Respondent's rights or legitimate interests in the disputed domain names, the Panel is satisfied that the Complainant has proven the second element of the Policy.
For the purposes of determining if there was bad faith registration and use, the Panel considered the circumstances of the registration and use of the domain name as set out in paragraph 4(b) of the Policy, noting that it does not impose any limitation on how the registration and use of a domain name in bad faith is evidenced.
In the Panel's view there can be little doubt that the Respondent was aware of the Complainants' trademark and associated reputation when it registered the disputed domain names and set about creating websites which contained links to other sites offering airline ticketing. This is evidenced by the descriptors that the Respondent has attached to the LUFTHANSA trademark and the way the Respondent's websites link to other websites operated by the Respondent. Both of the Respondent's websites and linked websites show a clear connection with airline ticketing, refer specifically to Lufthansa and even show on one of the linked websites the Lufthansa trademark. In an earlier case also involving a disputed domain name linked to Lufthansa (Deutsche Lufthansa AG v. Acme Mail, WIPO Case No. D2008-1580), the Panel found bad faith registration as it was likely that the respondent was aware of the Complainant's rights and reputation when it registered the disputed domain name due to the distinctiveness of the LUFTHANSA trademark, the extensive reputation and goodwill established by the Complainant in the mark and the extensive use of the Internet by travellers wishing to purchase airline tickets.
The Complainant has provided evidence that the websites of the disputed domain names are used as a ploy to attract Internet users who are redirected to websites in which the Respondent has an interest and which provide airline ticketing services for Lufthansa and its competitors. Clearly, the similarity of the disputed domain names to the Complainant's trademark is such that it would be confusing to the Complainant's customers and potential customers and likely cause some disruption to its businesses. The Respondent's actions appear to be intentional as it is not likely that the Respondent registered the distinctive name LUFTHANSA by mere chance.
On the basis of the above and the evidence provided by the Complainant, the Panel is satisfied that the Respondent's conduct falls within paragraph 4(b)(iv) of the Policy. Therefore, the Panel finds that the Complainant has demonstrated that the disputed domain names were registered and used in bad faith.
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 <lufthansaagent.com> and <lufthansaticket.com> be transferred to the Complainant.
Dated: March 13, 2009