URS DEFAULT DETERMINATION
Deutsche Lufthansa AG v. Slawomir Glica
Claim Number: FA1510001643295
DOMAIN NAME
<milesandmore.xyz>
PARTIES
| Complainant: Deutsche Lufthansa AG of Frankfurt, Germany | |
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Complainant Representative: Rauschhofer Rechtsanwälte
Hajo Rauschhofer of Wiesbaden, Germany
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| Respondent: Slawomir Glica of Polaniec, II, PL | |
REGISTRIES and REGISTRARS
| Registries: XYZ.COM LLC | |
| Registrars: OVH |
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. | |
| Saravanan Dhandapani, as Examiner |
PROCEDURAL HISTORY
| Complainant Submitted: October 21, 2015 | |
| Commencement: October 21, 2015 | |
| Default Date: November 5, 2015 | |
| Having reviewed the communications records, the Examiner finds that the 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
| Procedural Findings: | ||
| Multiple Complainants: Multiple Complainants: No multiple Complainants are involved in this proceeding. This Complaint and findings relate to the domain name <milesandmore.xyz>. No domain name is dismissed from this Complaint. | ||
| Multiple Respondents: Multiple Respondents: No multiple Respondents are involved in this proceeding. This Complaint and findings relate to the domain name <milesandmore.xyz>. No domain name is dismissed from this Complaint. | ||
| Findings of Fact: The case of the Complainant is as follows: The Respondent’s domain name milesandmore.xyz is identical or confusingly similar to the trademark Miles&More of LUFTHANSA. LUFTHANSA is a famous and well-known trademark operating worldwide, being impossible to say that one does not know it. Miles&More is the customer program which offers many services and products by collecting miles. Especially the well known credit card is combined with the miles and more services. It is clear that someone who uses an identical trademark that evidently belongs to a third party to “build” a domain name where the only difference is the suffix .xyz, knows the trademark since it is impossible to coin an identical word by coincidence. The Respondent has no rights or legitimate interests in respect of the domain name. Without permission to use the trademark the Respondent has no right to use it as the domain name. The Respondent has no identical trademark nor offers related services. The Respondent’s domain name has been registered and is being used in bad faith. It is indicated that 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 Respondent clearly registered the domain name, appropriating the Complainant’s famous trademark, for his own purposes. This is misleading and supports finding of bad faith registration. Additionally, Panels have also noted that passive holding or non-use of a domain name is evidence of a lack of legitimate rights in the domain name and this circumstance demonstrates bad faith. The domain is connected with the LUFTHANSA combining the suffix”xyz”. There is no further meaning in “xyz” so it may be used as a generic address like “com”. It should be expected to lead to the virtual representation/presence and official website of LUFTHANSA and not to an obviously parking site. The Respondent has no affiliation with Lufthansa and cannot be its official representative. It is impossible to imagine how the respondent should use that combination of words, if not pretending to act as an LUFTHANSA-official. LUFTHANSA is a non-generic name. The consensus view of panels is that the domain name needs to be genuinely used and not to trade off third-party rights. The Registrants name is linked with 187 other domains. LUFTHANSA has frequently been the subject of fraud by people pretending acting as LUFTHANSA officials sending fake offers, tickets, bills, contracts of labour. It is obvious that the domain milesandmore.xyz is very dangerous and suitable for violation. Greater requirements to rightful apply to the use of crucial domains. Right from holding the domain, Respondent may generate substantial abuse. |
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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: Determined: Finding for Complainant The Complainant has proved by documentary evidences that they are the registered owner of trademark “Miles&More” since 1999 under various classification, such as, 35, 39 & 42 and since 2002 under various other classification, such as, 18, 20, 21, 22, 24 & 25. As noted, the disputed domain name <milesandmore.xyz> composes “milesandmore” and “.xyz”. There is a normal text “and” has been used in between the words ‘miles’ and ‘more’ in the disputed domain name. Whereas the symbol ‘&’ has been used in between the words ‘Miles’ and ‘More’ in the registered trademark of the Complainant. Using symbol ‘&’ is nothing but a substitute for the normal text ‘and’. Therefore, using symbol ‘&’ in the place of normal text ‘and’ makes no difference. Thus “milesandmore” in disputed domain name is identical to Complainant’s trademark “Miles&More”. The “.xyz” in disputed domain name is a generic code top-level domain name (gTLD) suffix. It is non-distinctive and is incapable of differentiating the disputed domain name from the Complainant’s registered trademark. Based on the “Miles&More” being a registered trademark of the Complainant, the Examiner determines that URS 1.2.6.1(i) covers the domain name at issue in this Complaint. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant The Complainant owns trademark “Miles&More” since 1999 under various classifications which is the customer program offering many services and products by collecting miles. The Complainant’s adoption and first use of the registered trademark is for more than a decade ago. In such case, the burden lies on the Respondent to prove that he/she has legitimate rights and/or interests in the disputed domain name. The Respondent is in default and has not filed any response. Although, the Complainant is not entitled to relief simply by default of the Respondent to submit a Response, the Examiner can however and does draw evidentiary inferences from the failure of the Respondent to respond. In view of the above, the Complainant has established a prima facie case of lack of rights and legitimate interest. Based on the record, the Respondent does not have rights or legitimate interests in the disputed domain name. Hence, the Examiner determines that URS 1.2.6.2 covers the domain name at issue in this Complaint and that the Respondent has no legitimate right or interest to the domain name.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant It is the specific case of the Complainant that the Respondent is not affiliated with Complainant in any manner and never authorized the Respondent to register or use any domain name incorporating “Miles&More”. The Respondent has not responded in spite of the notice of complaint and notice of default under this URS determination process. It is well established that the registration and use of the disputed domain name must involve malafides where the registration and use of it was continues to be made in full knowledge of the Complainant’s prior rights in the “Miles&More” trademark and in circumstances where the registrant did not seek permission from the Complainant, as the owner of trademark, for such registration and use. Thus the Panel Examiner comes to irresistible determination that (i) the disputed domain name is identical to the Complainant’s “Miles&More” trademark; (ii) the Respondent’s name does not correspond to the disputed domain name; (iii) the Respondent was aware of the Complainant and its trademark when it registered the disputed the domain name; (iv) there is no indication of any authorization to use the Complainant’s mark. Hence, it is lawful to conclude that the disputed domain name was registered in bad faith. Thus the Examiner determines that URS 1.2.6.3 (a) and (d) covers the domain name at issue in this Complaint and the domain name was registered and is being used in bad faith. 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:
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:
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Saravanan Dhandapani Examiner
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