Deutsche Lufthansa AG v. Florian Arlart

NATIONAL ARBITRATION FORUM
URS DEFAULT DETERMINATION

Deutsche Lufthansa AG v. Florian Arlart
Claim Number: FA1409001581506

DOMAIN NAME

<lufthansa.academy>

PARTIES

	Complainant: Deutsche Lufthansa AG of Frankfurt, Germany
	Complainant Representative: Rauschhofer Rechtsanwälte Dr. Hajo Rauschhofer of Wiesbaden, Germany

	Respondent: Florian Arlart of Hamburg, II, DE

REGISTRIES and REGISTRARS

	Registries: Half Oaks, LLC
	Registrars: 1&1 Internet AG

EXAMINER

	The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
	Ms. Kateryna Oliinyk, as Examiner

PROCEDURAL HISTORY

	Complainant Submitted: September 25, 2014
	Commencement: September 25, 2014
	Default Date: October 13, 2014
	Having reviewed the communications records, the Examiner finds that the National Arbitration Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").

RELIEF SOUGHT

Complainant requests that the domain name be suspended for the life of the registration.

STANDARD OF REVIEW

Clear and convincing evidence.

FINDINGS and DISCUSSION

Findings of Fact: Under URS 9.1. the evidences will be the materials submitted with the Complaint and the Response, and those materials will serve as the entire records used by the Examiner to make a Determination. URS 8.2. reads that the burden of proof shall be clear an convincing evidences. Under URS 8.6. if the Examiner finds that all three standards provided for by URS 8.1. are satisfied by clear and convincing evidences and that there is no genuine contestable issue, then the Examiner shall issue a Determination in favour of the Complainant. Under URS 6.1. if at the expiration of the 14 Calendar Day Response period (or extended period if granted), the Registrant does not submit an answer, the Complaint proceeds to Default. Further URS 6.3. reads that all Default cases proceed to Examination for review on the merits of the claim. LUFTHANSA is a famous and well-known trademark operating worldwide. The Complainant holds the valid trademark registration for the LUFTHANSA (CTM 001212539). The Complainant contends that that the Respondent has never been granted the permission for the use of the mark by the trademark holder. The Respondent has not duly served the Response, but sent the e-mail communication to the URS Provider by which he just noted that he has no interest in the contested domain name already and that the domain name may be released. However, the Respondent has offered no explanation as to why the domain name <lufthansa.academy> was chosen.

Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.

[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant

The registered domain name <lufthansa.academy> fully incorporates the word mark LUFTHANSA for which the Complainant holds a valid regional registration and that is in current use. In addition, it is well accepted that the top level domain is irrelevant in assessing identity or confusing similarity, thus “.acadamy” is of no consequence here. Respectively, the Examiner finds that the domain name <lufthansa.academy> is identical to the Complainant’s LUFTHANSA mark under URS 1.2.6.1. (i).

[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant

The Examiner determines that the Respondent is not commonly known by the LUFTHANSA name and he has no connection or affiliation with the Complainant and has not received any license or consent, express or implied, to use Complainant’s LUFTHANSA mark in a domain name or otherwise. The domain name is neither generic nor descriptive. Passive holding or non-use of a domain name is evidence of a lack of legitimate rights in the domain name. Therefore, the Examiner finds that the Complaint meets URS requirement of 1.2.6.2.

[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or 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 documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’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 Registrant’s web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant

The bad faith exists where the respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website 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 its website or location or of a product or service on its website or location. The domain is connected with the LUFTHANSA combined with the suffix ”academy”. Academy is an institution of higher learning, research, or honorary membership. By visiting the site, customers will most likely expect to reach the LUFTHANSA website or the website operated by someone who has any ties with or relation to the LUFTHANSA. The Respondent who has never been granted the right to use the LUFTHANSA mark and who does not have any affiliation ties with the Complainant is using the confusion in the minds of consumers over the use of the well-known LUFTHANSA mark to divert users to the own website. The records of the case do not provide any evidence whatsoever of any actual or contemplated good faith use by him of the domain name. Thus, the Examiner finds the domain name <lufthansa.academy> misleading that supports finding of bad faith registration under URS 1.2.6.3.(d).

FINDING OF ABUSE or MATERIAL FALSEHOOD

The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.

The Examiner finds as follows:

The Complaint was neither abusive nor contained material falsehoods.

DETERMINATION

After reviewing the parties’ submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for the duration of the registration:

lufthansa.academy

Ms. Kateryna Oliinyk
Examiner
Dated: October 15, 2014

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