WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Deutsche Lufthansa AG v. Domain Admin, Whois Privacy Corp.
Case No. D2017-1985
1. The Parties
The Complainant is Deutsche Lufthansa AG of Frankfurt, Germany, represented by Rauschhofer Rechtsanwälte, Germany.
The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, New Providence, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <lufthansa-ticket.com> is registered with Internet Domain Service BS Corp (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 11, 2017. On October 11, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 12, 2017, the Registrar 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 received an amendment to the Complaint on October 30, 2017.
The Center verified that the Complaint together with the amendment to 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 31, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 20, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 21, 2017.
The Center appointed WiIliam A. Van Caenegem as the sole panelist in this matter on December 12, 2017. 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
The Complainant is the registered proprietor of a large number of trademarks consisting of, or including the word “Lufthansa” in many jurisdictions. For instance, International Trademark LUFTHANSA (Registration No. 450006) in Classes: 36, 37, 39, 41, 42, date of registration: December 6, 1979; International Trademark LUFTHANSA (Registration No. 722971) in Classes: 6, 8, 9,14,16, 18, 20, 21, 24, 25, 26, 28, date of registration: August 5, 1999; German trademark LUFTHANSA (Registration No. 990835) in Classes: 36, 37, 39, 41, 42, 43, date of registration: September 25, 1979; European Union Trade Mark LUFTHANSA (Registration No. 001212539) in Classes: 6;, 8, 9, 14,16,18, 20, 21, 24, 25, 26, 28, 36, 37, 39, 41, 42, date of registration: February 26, 2001; United States of America (“US”) Trademark LUFTHANSA (Registration No. 1994296) Class: 39, date of registration: August 20, 1996; and US Trademark LUFTHANSA (Registration No 1871600) Class: 39 with date of registration of January 3, 1995.
The Complainant operates a major website from the domain name <lufthansa.com> (linked to all of the Complainant’s other websites). The Complainant has registered numerous other domain names incorporating the word “lufthansa”, e.g., <lufthansa.de>, <lufthansa.com>, <lufthansa.us>, <lufthansa-reisemarkt.com>, <lufthansa-holidays.com>, <lufthansa-airlines.com>, <milesandmore.com>, <miles-and-more.com> etc.
The disputed domain name was registered on September 24, 2017 and, according to the evidence provided by the Complainant, the disputed domain name resolved to a website with a fake game apparently to acquire information of Internet users.
5. Parties’ Contentions
The Complainant is one of the world’s largest airlines, based in Germany. In 2012 its revenues totaled EUR 30.1 billion. It operates a frequent flyer program called “Miles & More” with a number of other airlines.
The Complainant is the registered proprietor of the trademark LUFTHANSA in a large number of jurisdictions. That mark is also registered for hotels, rental cards and credit cards, amongst others. According to the Complainant the mark is generally known worldwide and easily recognized, and previous UDRP panels are said to have recognized its substantial reputation and fame.
According to the Complainant the disputed domain name is confusingly similar to its trademarks since it includes the LUFTHANSA mark in its entirety merely adding the descriptive term “ticket” which is a “product” of the Complainant. The most prominent part of the disputed domain name is said to be the LUFTHANSA mark, a very distinctive and famous mark with a substantial reputation.
According to the Complainant the word “ticket” obviously refers to an airline ticket as this is the use the Respondent makes of it on the homepage to which the disputed domain name resolves. The Complainant contends that an Internet user viewing a website located at the address using the disputed domain name would assume that the website and/or the operator is somehow sponsored by, or affiliated with the Complainant or has its consent. Further, because “ticket” describes the business of the Complainant the incorporation of this term is likely to increase rather than to reduce confusion. In any case it has often been decided that incorporating a trademark in its entirety is sufficient to establish confusing similarity, the Complainant stresses. Addition of a generic term does not avoid confusion.
The Complainant also contends that there is no evidence that the Respondent uses the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.
The Complainant is furthermore not aware of any relevant trademark application for the term “Lufthansa ticket” or similar originating with the Respondent, and the Respondent’s name and contact details do not indicate any genuine connection with established rights in the disputed domain name.
The Complainant has not authorized or licensed the use of its Lufthansa trademark. The Respondent is not commonly known by the disputed domain name, nor is the Complainant aware of any trademark application or registration in the name of the Respondent.
Rather, the Respondent uses the disputed domain name to offer a fake game and gather information about users and their Facebook accounts when they participate. Phishing of this kind is a use in bad faith of a disputed domain name, or so the Complainant contends, referring to a number of previous UDRP decisions. That the website to which the disputed domain name resolves is at present inactive is of no consequence, the Complainant stresses. This is because: the Complainant’s mark is well-known; there is no evidence of good faith use of the disputed domain name; the Respondent appears to be concealing its true identity; the Respondent provided false contact details; and the Respondent’s present inactivity follows its use as a phishing or fraudulent website.
Further, the Complainant asserts that the trademark LUFTHANSA is a very distinctive trademark, with no meaning in any language other than as a trademark identifying the Complainant. It is highly unlikely that another person would choose it without having the Complainant in mind. Therefore it is inconceivable, so the Complainant contends, that the Respondent did not have actual notice of the Complainant’s trademark rights, also given the fact that the Lufthansa trademark was registered 38 years ago. According to the Complainant it is very likely that the Respondent was aware of the Complainant’s trademark and registered the disputed domain name for criminal purposes only. The addition of the word “ticket” indicates moreover that the Respondent was well aware of the nature of the Complainant’s business at the time of registration of the disputed domain name. According to the Complainant, it is clearly the intention of the Respondent with its fake game at the website to which the disputed domain name resolves, to profit for commercial gain from the confusion caused by the inclusion of the Complainant’s trademark in the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name is not identical to the LUFTHANSA registered trademark of the Complainant. However, it incorporates that trademark in its entirety and as its most prominent initial part. The addition of the generic term “ticket” does not detract from the confusing similarity of the disputed domain name. The Complainant’s trademark is also separated from that subsequent generic term by a dash, causing the mark to appear even more obviously. The addition of the term “ticket” tends to reinforce the suggestion of some connection between the Complainant and the disputed domain name, which does not in fact exist. This is because the Complainant is precisely engaged in the business of supplying tickets for flights on its airline network. There is nothing in the combination of terms that would prevent a finding of confusing similarity.
Therefore the Panel holds that the disputed domain name is confusingly similar to the Complainant’s registered trademark LUFTHANSA.
B. Rights or Legitimate Interests
There is nothing before the Panel that indicates that the Respondent has any rights or legitimate interests in the disputed domain name. The Complainant has not authorized the use of its distinctive LUFTHANSA trademark by the Respondent, nor is the Respondent known by that name or by the disputed domain name, nor does it carry on business under that name or have any actual or prospective trademark rights relating to it.
Furthermore, the Complainant puts material before the Panel that indicates that the Respondent has used the website to which the disputed domain name resolves for a phishing exercise, by creating a false game that would enable the Respondent to accumulate the private data of putative participants. This amounts to a dishonest practice that is not of a kind to vest rights or legitimate interests in the Respondent in relation to the disputed domain name – quite the contrary.
Therefore the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The acquisition of a domain name that incorporates a trademark that is distinctive and well recognized in many jurisdictions is likely to be an act of bad faith were the acquirer has no rights or legitimate reason for the acquisition of such a domain name. There is no evidence of any good faith noncommercial use of any kind in the present case. In fact, it appears that the Respondent has used the disputed domain name to establish a fake game site, apparently with a view to acquiring private data or information of Internet users attracted to the site because of its reference to the Complainant’s distinctive and widely known trademark. The registration of the disputed domain name, including as it does the term “ticket”, indicates that the Respondent was well aware of the mark and therefore the Complainant’s exclusive rights prior to registration; its subsequent use for a fake gaming website clearly establishes use in bad faith.
Therefore the Panel holds that the disputed domain name was registered and used in bad faith.
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 <lufthansa-ticket.com> be transferred to the Complainant.
William A. Van Caenegem
Date: December 26, 2017